Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that: 4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein. 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus. 4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). 4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited. 4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex. 4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers. 4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement. 4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment. 4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally. 4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II. 4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. 4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor. 4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 4 contracts
Sources: Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.), Subscription Agreement (CytoDyn Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents, the Press Releases and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares for any period of time.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in this Agreementthe Exchange Act Documents, the ProspectusPress Releases, the Disclosure Package this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares Shares.
5.7 The Company acknowledges and Warrants. The agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards those specifically set forth in Part B of this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire attached hereto as Annex IIQuestionnaire.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc), Stock Purchase Agreement (Rita Medical Systems Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No The Investor understands and acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, Prospectus or the Prospectus Supplement or any free writing prospectusIssuer Free Writing Prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and WarrantsUnits. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without Without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisorsadvisors that are subject to an obligation of confidentiality) and has not engaged in any purchases or sales of transactions involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of transactions involving the securities of the Company (including Short Sales) or disclose any information about the Offering (other than to its legal, accounting and other advisors that are subject to an obligation of confidentiality) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or (but shall not against be deemed to include the box, and all types location and/or reservation borrowable shares of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basisCommon Stock), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 4.6 The Investor is acquiring the Shares and Warrants (includingSecurities for its own account, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result ofnominee or agent; provided, any form of general solicitation or general advertising includinghowever, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or that by making the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described representations herein, the Investor has taken no action that would give rise does not agree to hold any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive Securities for any minimum or other specific term and reserves the right to sell resell or otherwise dispose of the Securities at any time, subject to the Investor.
4.13 compliance with applicable federal or state securities laws, rules or regulations. The Investor is aware that a Managing Partner acquiring the Securities hereunder in the Placement Agent’s New Yorkordinary course of its business and does not presently have any agreement or understanding, NY officedirectly or indirectly, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇with any third party to acquire, entered into a final settlement with sell, transfer, or distribute any of the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealerSecurities.
Appears in 4 contracts
Sources: Subscription Agreement (Quicklogic Corporation), Subscription Agreement (Novatel Wireless Inc), Subscription Agreement (Quicklogic Corporation)
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions on the Signature Page Investor is acquiring the number of Shares, each as set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the Investor Questionnaire respective rules and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date regulations promulgated thereunder; and (civ) the Investor has, in connection with its decision to purchase the number of Shares and Warrants as set forth on in Section 3 of the Signature PageStock Purchase Agreement, has received and is relying only relied upon the Disclosure Package Exchange Act Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares for any period of time.
4.2 (a) No 5.2. The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3. The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantsthe Registration Rights Agreement and without complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except as set forth or incorporated by reference in the Base Prospectusaccordance therewith.
5.4. The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investor herein may be violative legally unenforceable.
5.5. Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establishment of an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the thirty (30) trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 price of the Common Stock. The Investor understands that nothing will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in this Agreement, the Prospectus, Common Stock of the Disclosure Package or any other materials presented to Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the Investor in connection with the purchase holding and sale of the Shares and Warrants constitutes legal, tax or investment adviceShares.
5.6. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and WarrantsShares.
5.7. The Company acknowledges and agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company other than those specifically set forth in accordance with Section 13 Sections 5, 6 and 16(a) of this Annex.
4.6 Since Agreement, or in the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales Confidentiality Agreement (as defined herein) involving the Company’s securitiesbelow). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Transtechnology Corp), Stock Purchase Agreement (Tinicum Capital Partners Ii Lp), Stock Purchase Agreement (Transtechnology Corp)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants (as of the date hereof) to, and agrees with, the Company Sellers and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities Units presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, (c) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (cd) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and the representations, warranties, covenants and agreements of the Company contained in the Placement Agency Agreement.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and nor has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement or any free writing prospectusFinal Prospectus.
4.3 (a) The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The If the Investor will maintain the confidentiality of all has previously received any material non-public information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since since the time at which the Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any of such material non-public information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions involving the securities of the Company (including, without limitation, any Short Sales (as defined hereinbelow) involving the Company’s securities). The Investor covenants that it will (i) maintain the confidentiality of all material non-public information acquired as a result of the transactions contemplated herein and (ii) not engage in any purchases or sales of the securities of the Company (including Short Sales) ), in each case prior to the time that the transactions contemplated by this Agreement are such material non-public information is publicly disclosed. The Investor agrees that it will not use any of the Securities Units acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The 4.6 Investor is acquiring the Shares and Warrants (including, upon the exercise acknowledges that a portion of the Warrants, identifying information set forth on the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and Signature Page is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) being requested in connection with the Offering USA Patriot Act, Pub.L.107-56 (the “Patriot Act”), and sale of Investor agrees to provide any additional information requested by the Securities and is not subscribing for Sellers or the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor Placement Agent in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect Patriot Act or any similar legislation or regulation to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to which Sellers or the Placement Agent as described hereinis subject, the in a timely manner. Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges hereby represents that the Placement Agent has acted as a placement agent for identifying information set forth on the Company in previous offerings of Signature Page, including without limitation, its debt Taxpayer Identification Number assigned by the Internal Revenue Service or any other taxing authority, is true and equity securities, complete on the date hereof and will be true and complete at the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares time of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the InvestorClosing.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 3 contracts
Sources: Subscription Agreement (GeoVax Labs, Inc.), Subscription Agreement (GeoVax Labs, Inc.), Subscription Agreement (GeoVax Labs, Inc.)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is an entity that qualifies for an exemption from the requirements of the Company to qualify or register the offer and sale of the Securities to the Investor under any applicable state “blue-sky” or securities laws in the jurisdiction in which the Investor is deemed to reside, (b) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, (bc) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (cd) in connection with its decision to purchase the number of Shares and Warrants Securities set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsSecurities, except as set forth or incorporated by reference in the Base ProspectusRegistration Statement, the Prospectus Supplement or any free writing prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and WarrantsUnits. The Investor also understands that there is no established public trading market for the Pre-Funded Warrants being offered in or the OfferingWarrants, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Pre-Funded Warrants or the Warrants on any securities exchange. The Investor understands that without an active trading market, the liquidity of the Pre-Funded Warrants or the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about provided the material pricing terms of the Offering, the Investor has not disclosed any material pricing information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to from the time the Investor received material pricing information regarding the offering until the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring has been afforded, (i) the Shares opportunity to ask such questions as it has deemed necessary of, and Warrants (includingto receive answers from, upon the exercise representatives of the Warrants, Company concerning the Warrant Shares) solely for such Investor’s own account for investment purposes only terms and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part conditions of the Shares, the Warrants, or the Warrant Shares, Offering and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment investing in the Securities Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is able necessary to bear make an informed investment decision with respect to the economic risks of such investment.
4.9 . The Investor acknowledges and agrees that neither R▇▇▇ nor any affiliate of R▇▇▇ has provided such Investor with any information or advice with respect to the Securities nor is unaware of, is in no way relying on, and did not become aware such information or advice necessary or desired. Neither R▇▇▇ nor any of its affiliates has made or makes any representation as to the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio Company or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale quality of the Securities and is not subscribing for the Securities R▇▇▇ and did not become aware any of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, its affiliate may have acquired non-public information with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal Company which such Investor agrees need not be provided to 9% it. In connection with the issuance of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued Securities to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described hereinInvestor, the Investor has taken no action that would give rise to neither R▇▇▇ nor any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent of its affiliates has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants financial advisor or fiduciary to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the such Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 3 contracts
Sources: Subscription Agreement (Great Basin Scientific, Inc.), Subscription Agreement (Great Basin Scientific, Inc.), Subscription Agreement (Great Basin Scientific, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Common Shares and Warrants set forth in Paragraph III of the Securities Purchase Agreement in the ordinary course of his business and for his own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cv) the Investor has, in connection with its his decision to purchase the number of Common Shares and Warrants set forth on in Paragraph III of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither this Offering nor the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if bona fide nature of the Investor’s investment intent as expressed herein and the information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is outside the United Statestrue, it will comply with all applicable laws correct and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, complete in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusmaterial respects.
4.3 5.2 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor him in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties’ rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any limited by applicable federal or state securities law, rule or regulation)laws.
4.4 5.3 The Investor understands that nothing in this Agreement, is not purchasing the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is acquiring the Internet (includingCommon Shares and Warrants, without limitationand the Warrant shares receivable upon exercise thereof, internet “blogs,” bulletin boardsin each case, discussion groups for his own account and social networking sites) not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of business.
5.5 The Investor understands that the Securities are being offered and sold to him in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6 The Investor and his advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities and is not subscribing for as have been requested by the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 Investor. The Investor meets and his advisors, if any, have been afforded the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect opportunity to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or his advisors, if any, or his representatives shall modify, amend or affect the Investor’s common stock, which may give Placement Agent as incentive right to sell rely on the Company’s representations and warranties contained herein. The Investor understands that his investment in the Securities to the Investorinvolves a high degree of risk.
4.13 5.7 The Investor is aware understands that a Managing Partner no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Placement Agent’s New YorkSecurities, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with nor have such authorities passed upon or endorsed the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with merits of the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealeroffering of the Securities.
Appears in 3 contracts
Sources: Securities Purchase Agreement (nFinanSe Inc.), Securities Purchase Agreement (nFinanSe Inc.), Securities Purchase Agreement (nFinanSe Inc.)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor Investor: (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent Agents that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Agents are not authorized to make and has have not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsSecurities, except as set forth or incorporated by reference in the Base Prospectus, Disclosure Package or the Prospectus Supplement or any free writing prospectus.
4.3 (a) The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and WarrantsUnits. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchangeexchange or other trading market. The Investor understands that without Without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the a Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisorsadvisors who are bound by agreements or duties of confidentiality) and has not engaged in any purchases or sales of involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of involving the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 3 contracts
Sources: Subscription Agreement (Lpath, Inc), Subscription Agreement (Lpath, Inc), Subscription Agreement (Lpath, Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor Questionnaire has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, provided that the Company complies with its obligations under Section 7.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus (as set forth defined in Exhibit A) forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability of any rights to indemnification or contribution that may be violative effectiveness of the public policy underlying Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any lawright with respect to (collectively, rule a “Disposition”) the Shares in violation of the Securities Act, nor will Investor engage in any hedging or regulation (including any federal other transaction which is designed to or state securities law, rule could reasonably be expected to lead to or regulation).
4.4 The result in a Disposition of Shares by the Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor person or entity in connection with the purchase and sale violation of the Shares Securities Act.
5.6 Between the time such Investor learned about the Offering and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the public announcement of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, such Investor has not taken, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure announcement of the Offering will not take, any action that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted has caused or will cause such Investor about the Offeringto have, the Investor has not disclosed directly or indirectly, sold or agreed to sell any information regarding the Offering to any third parties (other than its legalshares of Common Stock, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover effected any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Actsale, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, established any “put equivalent positionsposition” (as defined in Rule 16a-1(h) under the Securities Exchange ActAct of 1934, as amended) and similar arrangements with respect to the Common Stock, granted any other right (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any articleput or call option) with respect to the Common Stock or with respect to any security that includes, noticerelates to or derived any significant part of its value from the Common Stock, advertisement whether or not, directly or indirectly, in order to hedge its position in the Shares, nor has such Investor, directly or indirectly, caused any person to engaged in any short sales or similar transactions with respect to the Common Stock.
5.7 The Investor further represents that no broker, investment banker, financial advisor or other communication published in person is entitled to any newspaperbroker’s, magazine finder’s, financial advisor’s or other similar media fee or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) commission in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings hereby based upon arrangements made by or on behalf of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc)
Representations, Warranties and Covenants of the Investor. 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and that: (i) the Placement Agent that:
4.1 The Investor (a) is an "accredited investor" as defined in Regulation D under the Securities Act, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like similar to that involved in the purchase of the Shares, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor understands that the Shares are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Shares set forth in paragraph 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only, has no present intention of distributing any of such Shares and Warrantshas no arrangement or understanding with any other persons regarding the distribution of such Shares (this representation and warranty not limiting the Investor's right to sell Shares pursuant to the Registration Statement or otherwise, including investments or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities issued by laws and the Company respective rules and investments in comparable companies, regulations promulgated thereunder; (biv) the Investor has answered all questions on in paragraph 4 of the Signature Page Stock Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in paragraph 3 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package representations and warranties of the Company contained herein and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference contained in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchangeSEC Reports. The Investor understands that without an active market, the liquidity issuance of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior Shares to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of been registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) registered or qualified under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereofany state securities law, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stockreliance on specific exemptions therefrom, which exemptions may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreeddepend upon, among other things, never the representations made by the Investor in this Agreement. No person (including without limitation the Placement Agent) is authorized by the Company to seek provide any representation that is inconsistent with or in addition to register with those contained herein or in the Massachusetts Securities Division in SEC Reports, and the Investor acknowledges that it has not received or relied on any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealersuch representations.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ats Medical Inc), Stock Purchase Agreement (Ats Medical Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledgesundersigned investor acknowledges that the Securities are being offered and sold without registration under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and in Rule 506(b) of Regulation D promulgated thereunder and that the availability of such exemption is based in material respects upon the truth of the following representations. With the foregoing in mind and to induce the Company to accept this subscription, the undersigned hereby represents and warrants toto the Company, each other person that subscribes for the Securities, the Company’s legal counsel and agrees witheach agent of the Company as follows:
(a) the undersigned has received and reviewed all information that he, she or it considers necessary or appropriate for deciding whether to purchase the Securities, including, without limitation, the registration statements of the Company and exhibits thereto filed with the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated Securities and experienced in making, Exchange Commission and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares Company filed with the Securities and WarrantsExchange Commission and effective on November 23, including investments in securities issued by 2020 ( collectively, the “SEC Documents”); the undersigned (and/or his, her or its professional advisor, if any) has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Offering and regarding the business, financial condition, properties, operations, prospects and other aspects of the Company and investments in comparable companies, all such questions have been answered to the undersigned’s full satisfaction; and the undersigned has further had the opportunity to obtain all information (to the extent that the Company possesses or can acquire such information without unreasonable effort or expense) which the undersigned deems necessary to evaluate the investment and to verify the accuracy of information otherwise provided to the undersigned;
(b) the undersigned has answered all questions not relied on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection any information or representations with its decision respect to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering Offering of the Shares and WarrantsSecurities, other than as expressly set forth herein or possession as set forth in the SEC Documents; the undersigned understands that no person has been authorized to give any information or distribution of offering materials in connection with the issue of the Securities in to make any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and representations other than those expressly contained herein;
(c) the Placement Agent undersigned is not authorized an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act; and the undersigned agrees to make furnish any additional information requested to assure compliance with applicable federal and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor State Securities Laws in connection with the purchase and sale of the Shares and Warrants constitutes legalSecurities;
(d) the undersigned represents that he, tax she or investment advice. The Investor it has consulted such legalwith his, her or its own tax, investment and legal advisors with respect to the federal, state, local and foreign tax and investment advisors and made such investigation as itconsequences arising from his, in her or its sole discretionpurchase of the Securities to the extent the undersigned has determined it necessary to protect his, has deemed necessary her or appropriate its own interest in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market a subscription for the Warrants being offered Securities in view of the undersigned’s prior financial experience and present financial condition, and has relied on his, her or its own analysis and investigation and that of the undersigned’s advisors in determining whether to invest in the Offering, Securities;
(e) the undersigned recognizes that an investment in the Securities involves a high degree of risk and no assurance or guarantee has or can be given that an investor in the Company does not expect will receive a return of his, her or its capital or realize a profit on such a market to develop. In additioninvestor’s investment;
(f) the undersigned has made equity investments in micro-cap companies or is experienced in business matters and regards himself, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired herself or itself as a result of the transactions contemplated hereby prior sophisticated investor able to the public disclosure of that evaluate investment and financial information or chose independent professional advisors who are unaffiliated with, have no equity interest in and are not compensated by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed or any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales affiliate of the securities of the Company (includingCompany, without limitationdirectly or indirectly, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage to assist in any purchases such evaluation and, either alone or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereofwith such advisers, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for has such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be that the undersigned is capable of evaluating the merits and risks of an investment in the Securities and has the capacity to protect the undersigned’s own interests in connection with the undersigned’s proposed investment in the Securities;
(g) the undersigned has determined that he, she or it can afford to bear the risk of the investment in the Securities, including loss of the entire investment in the Company and he, she or it will not experience personal hardship if such a loss occurs;
(h) the undersigned has all requisite power and capacity (if the undersigned is able an individual) or authority (if the undersigned is an entity) to enter into this Subscription Agreement and to perform all the obligations required to be performed by the undersigned hereunder;
(i) the undersigned is purchasing the Securities solely for his, her or its own account for investment (not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization, or other transfer thereof, and the undersigned has no present plans to enter into any contract, undertaking, agreement, or arrangement for any such resale, distribution, fractionalization, or transfer;
(j) the undersigned acknowledges that neither the Company nor any other person offered to sell the Securities to him, her or it by means of any form of general advertising, such as media advertising or seminars;
(k) the undersigned is aware and understands that no federal or state agency has made any recommendation or endorsement of the Securities as an investment, nor has any such governmental agency reviewed or passed upon the adequacy of information disclosed to the undersigned, and the Securities are being issued without registration under the Securities Act;
(l) the undersigned understands that the Securities have not been, and the undersigned has no rights to require that they be, registered or qualified under the Securities Act; that there is not now any public market for the Securities and none is anticipated; that the Securities will not be readily accepted as collateral for a loan; and that it may be extremely difficult to sell the Securities in the event of a financial emergency; as a consequence, the undersigned understands that he, she or it must bear the economic risks of the investment in the Securities for an indefinite period of time;
(m) the undersigned has been advised and understands that all certificates evidencing ownership of the Securities will bear a legend in substantially the form set forth in Section 11;
(n) the undersigned agrees: (i) that he, she or it will not sell, assign, pledge, give, transfer or otherwise dispose of (collectively, a “Transfer”) the Securities, or any interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to an offering registered under the Securities Act and all applicable State Securities Laws or pursuant to an opinion of counsel satisfactory to the Company that such registration is not required; (ii) that any Transfer of the Securities shall be subject to the applicable terms of the Company’s Articles of Incorporation and bylaws; and (iii) that the Company and any transfer agent for the Securities shall not be required to give effect to any purported Transfer of such Securities except upon compliance with the foregoing restrictions;
(o) the undersigned acknowledges that the Company has the right in its sole and absolute discretion to abandon the Offering at any time prior to the completion of the Offering and to return the previously paid subscription price of the Securities, without interest thereon, to the undersigned;
(p) the undersigned understands that, unless he, she or it notifies the Company in writing to the contrary at or before the Closing, all the undersigned’s representations and warranties contained in this Subscription Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the undersigned;
(q) The undersigned’s overall commitment to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Company will not cause such overall commitment to become disproportionate to the undersigned’s net worth. The address set forth on the signature page below is the undersigned’s true and correct residence (or, if not an individual, domiciliary) address;
(r) The undersigned is not relying on the Company with respect to the economic considerations of the undersigned relating to this investment.
4.9 (s) The Investor is unaware ofundersigned acknowledges that the information furnished by the Company to the undersigned or its advisors in connection with this Offering, except for the SEC Documents, is confidential and nonpublic and agrees that all such information that is material and not yet publicly disseminated by the Company shall be kept in no way relying onconfidence by the undersigned and neither used by the undersigned for the undersigned’s personal benefit (other than in connection with this Subscription), nor disclosed to any third party, except the undersigned’s legal and did not become aware other advisors who shall be advised of the Offering through confidential nature of such information, for any reason; provided, that this obligation shall not apply to any such information that (A) is part of the public knowledge or literature and readily accessible by the public as of the date hereof, (B) becomes a part of the public knowledge or literature and readily accessible by publication (except as a result ofof a breach of this provision) or (C) is received from third parties (except for third parties who disclose such information in violation of any confidentiality obligation);
(t) The undersigned has completed and returned to the Company a Purchaser Questionnaire, any in the form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published attached hereto. The information provided by the undersigned in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups Purchaser Questionnaire is true and social networking sites) correct and the undersigned understands that the Company is relying upon such information in connection with the Offering and sale purchase of the Securities by the undersigned. Furthermore, if the undersigned has used a representative or representatives (each, a “Purchaser Representative”) acceptable to the Company in connection with the undersigned’s evaluation of an investment in the Securities, each such Purchaser Representative has completed and returned to the Company a Purchaser Representative Questionnaire, in the form available from the Company upon request;
(u) The undersigned further certifies that the information contained in the accompanying Purchaser Questionnaire is true and correct. The undersigned further certifies that it is NOT subject to backup withholding because either (1) it is exempt from backup withholding, (2) it has not subscribing for been notified by the Securities Internal Revenue Service (“IRS”) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified it that it is no longer subject to backup withholding. The undersigned understands that these certifications, which are made under penalty of perjury, may be disclosed to the IRS by the Company and did not become aware that any false statements contained in this paragraph could be punished by fine and imprisonment;
(v) The undersigned represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with the undersigned nor any person or entity having a beneficial interest in the undersigned nor any other person or entity on whose behalf the undersigned is acting (1) is a person or entity listed in the annex to Executive Order No. 13224 (2001) issued by the President of the Offering United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), (2) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC), (3) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (4) is a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (5) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules or orders (categories (1) through (5) collectively, a “Prohibited Investor”). The undersigned agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. The undersigned consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its affiliates and agents of such information about the undersigned as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. If the undersigned is a financial institution that is subject to the PATRIOT Act, Public Law No. 107-56 (Oct. 26, 2001) (the “Patriot Act”), the undersigned represents that the undersigned has met all of its respective obligations under the Patriot Act. The undersigned acknowledges that if, following the investment in the Company by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in suspicious activity or refuses to provide promptly information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the undersigned to transfer the Shares. The undersigned further acknowledges that the undersigned will not have any claim against the Company or any of its affiliates or agents for any form of damages as a result of any seminar of the foregoing actions; and
(w) The foregoing representations, warranties and agreements, together with all other representations and warranties made or meeting to which given by the Investor was invited by, or any solicitation of a subscription by, a person not previously known undersigned to the Investor Company in any other written statement or document delivered in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted , shall be true and correct in all respects on and as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent date of the Closing as incentive to sell the Securities to the Investorif made on and as of such date and shall survive such date.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Clean Energy Technologies, Inc.), Subscription Agreement (Clean Energy Technologies, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares and no arrangement or understanding exists with any other person regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation of the Investor Questionnaire Registration Statement (as defined in Section 7.1) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Offering Materials and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached as Exhibit A hereto, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if .
5.3 The Investor hereby covenants with the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantswithout effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that indemnity may be violative of the limited by state or federal securities laws or public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)such laws.
4.4 5.5 Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Shares if doing so would be in violation of applicable securities laws, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares.
5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Purchase Agreement (Hanover Compressor Co /), Purchase Agreement (Hanover Compressor Co /)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, to and agrees with, covenants with the Company and the Placement Agent thatCorporation as follows:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting The Investor recognizes that an investment decision like that involved in the purchase Corporation involves a high degree of risk. The Investor further recognizes that the Shares Corporation has a very limited financial and Warrants, including investments in securities issued by the Company and investments in comparable companies, operating history.
(b) The Investor has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and been advised that (i) there will be true no market for investment made in the Corporation and correct as of the Closing Date and (ii) it may not be possible to readily liquidate this investment.
(c) The Investor's overall commitment to investments which are not readily marketable is not disproportionate to its net worth; its investment in connection with the Corporation will not cause such overall commitment to become excessive; and it can afford to bear the loss of its decision to purchase entire investment.
(d) The Investor has adequate means of providing for its current needs and personal contingencies and has no need for liquidity in its investment in the number Corporation.
(e) The Investor satisfies any special suitability or other applicable requirements of Shares and Warrants set forth on its state or other jurisdiction of residence and/or the Signature Page, state or other jurisdiction in which the transaction occurs.
(f) The Investor has received and is relying only upon reviewed carefully the Disclosure Package Term Sheet provided to the Investor and all attachments thereto. Except as set forth in the documents incorporated by reference therein.
4.2 (a) No action has Term Sheet, no representations or warranties have been or will be taken in any jurisdiction outside made to the United States Investor by the Company Corporation or the Placement Agent that would permit an offering of the Shares any agent, officer, employee or affiliate, and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if entering into this transaction the Investor is outside not relying upon any information other than that contained in such documents and the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at results of its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusindependent investigation.
4.3 (g) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be that it is capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investmentCorporation.
4.9 (h) The Investor is unaware ofconfirms that all documents, is in no way relying onrecords, and did not become aware books pertaining to its proposed investment in the Corporation which it requested to be made available to it have been made so available.
(i) The Investor has had an opportunity to ask questions of and receive answers from officers or representatives of the Offering through or as a result ofCorporation concerning the terms and conditions of this investment, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet and all such questions have been answered to its full satisfaction.
(including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sitesj) in connection with the Offering and sale of the Securities and is not subscribing The Investment for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person hereby subscribes will be acquired for its account for investment and not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.view toward resale or
Appears in 2 contracts
Sources: Subscription Agreement (Solutionsamerica Inc), Subscription Agreement (Solutionsamerica Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only solely upon the Disclosure Package and the documents incorporated by reference therein.
4.2 The Investor acknowledges that (a) No no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, required and (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusexpense.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain Since the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by date on which the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined hereinbelow) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Kodiak Oil & Gas Corp), Subscription Agreement (Kodiak Oil & Gas Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants tothat it has access to the Company’s base prospectus dated February 13, 2009 and agrees withthe Issuer Free Writing Prospectus dated February 13, 2009, relating to the Offering, (collectively, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein“Prospectus”).
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants5.2 The Investor, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense expense.
5.3 The Investor further represents and warrants to, and covenants with, the Company that (ci) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares Securities.
5.5 From and Warrants. The after obtaining the knowledge of the sale of the Securities contemplated hereby, such Investor also understands that there is no established public trading market for the Warrants being offered in the Offeringhas not taken, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure announcement of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted transaction such Investor about the Offering, the Investor has shall not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitationtake, any Short Sales (as defined herein) involving the Company’s securities). The action that has caused or will cause such Investor covenants that it will not engage in to have, directly or indirectly, sold or agreed to sell any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover Common Stock, effected any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Actsale, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, established any “put equivalent positionsposition” (as defined in Rule 16a-1(h) under the Securities Exchange Act) and similar arrangements with respect to the Common Stock, granted any other right (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement put or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sitescall option) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise Common Stock or with respect to any claim by security that includes, relates to or derived any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings significant part of its debt and equity securitiesvalue from the Common Stock, and whether or not, directly or indirectly, in order to hedge it position on the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the InvestorShares.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Registered Direct Placement Agency Agreement (BMP Sunstone CORP), Purchase Agreement (BMP Sunstone CORP)
Representations, Warranties and Covenants of the Investor. (a) The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the shares of Series B Preferred Stock set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation for the Investor Questionnaire Registration Statement (referred to below) and the answers thereto are true and correct as to the best of the date hereof and will be true and correct Investors knowledge as of the Closing Date Date; and (cv) the Investor will notify the Company immediately of any change in connection with any of such information until such time as the Investor has sold all of its decision Securities or until the Company is no longer required to purchase keep the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereinRegistration Statement effective.
4.2 (ab) No The Investor acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities Securities, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . The Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and expense.
(c) The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in Securities without complying with the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance provisions of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Series B Preferred Stock Purchase Agreement (Bb Biotech Ag), Series B Preferred Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth in Section 2 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire attached hereto as Exhibit A (the "Investor Questionnaire") for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 2 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if .
4.3 The Investor hereby covenants with the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout complying with any prospectus delivery requirement then applicable to it, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 6.2(c).
4.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investor herein may be violative legally unenforceable.
4.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Exchange Act) during the 20 trading days immediately preceding the date of this Agreement or otherwise has engaged or will engage, directly or indirectly, in any action designed to, or which might be reasonably expected to, cause or result in any manipulation of the public policy underlying price of the Common Stock. The Investor will not use any law, rule or regulation (including of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal or state securities law, rule or regulation)laws in the holding and sale of the Shares.
4.4 4.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares Shares.
4.7 The Company acknowledges and Warrants. The agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards those specifically set forth in Part B Sections 4 and 15(a) of this Agreement, or in the Investor Questionnaire attached hereto as Annex IIQuestionnaire.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Spire Corp), Stock Purchase Agreement (Spire Corp)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeableAgents, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (except to the extent made only as of a specified date in which case as of such specified date), that:
(1) The Investor is (a) an “accredited investor” as such term is defined in rule 501 of Regulation D promulgated under the Securities Act, (b) aware that the sale of the Shares to it is being made in reliance on a private placement exemption from registration under the Securities Act, (c) acquiring the Shares for its own account or for the account over which it exercises sole investment discretion of a Qualified Institutional Buyer, or QIB, as defined in Rule 144 promulgated under the Securities Act (or an institutional accredited investor) and not with a view to distribution and (d) aware that hedging transactions involving the Company’s securities may not be conducted unless in compliance with the Securities Act.
(2) The Investor understands and agrees on behalf of itself and on behalf of any investor account for which it is purchasing Shares that the Shares and the Ordinary Shares issuable upon conversion of the Shares shall not be transferred unless in accordance with the Letter Agreement, that the Shares and the Ordinary Shares issuable upon conversion of the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the issuance of the Shares and the Ordinary Shares issuable upon conversion of the Shares have not been and will not be as of the Closing registered under the Securities Act or any other applicable securities laws and that (a) if it decides to offer, resell, pledge or otherwise transfer any of the Shares or the Ordinary Shares issuable upon conversion of the Shares, such Shares and Ordinary Shares may be offered, resold, pledged or otherwise transferred only (i) to a person whom the seller reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A, (ii) pursuant to an exemption from the registration requirements of the Securities Act, including the exemption provided by Rule 144 under the Securities Act (if available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company, or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any state of the United States, and that (b) the Investor shall notify any subsequent purchaser or potential subsequent purchaser of the Shares and the Ordinary Shares issuable upon conversion of the Shares from it of all transfer restrictions and other matters referred to above in this Section 5.1(2) and will provide the Company and its transfer agent such certificates and other information as they may reasonably require to confirm that any transfer by such Investor of any Shares and the Ordinary Shares issuable upon conversion of the Shares complies with the foregoing restrictions, if applicable. So long as the shares are in uncertificated form and registered directly on the share registry, the transfer agent will not permit transfers of such shares except in compliance with such restrictions.
(3) The Investor understands that the Shares will bear a legend in the form specified in the Amended and Restated Memorandum. The Investor understands that the Ordinary Shares issuable upon conversion of the Shares, unless sold in compliance with Rule 144 under the Securities Act or pursuant to the registration statement to be filed pursuant to the Registration Rights Agreement, will, if issued in certificated form, bear a legend substantially to the following effect:
(4) The Investor:
(a) is able to fend for itself in the transactions contemplated by this Agreement;
(b) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares;
(c) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; and
(d) acknowledges that it is not acquiring the Shares as a result of any “general solicitation” or “general advertising” (within the meaning of Rule 502(c) under the Securities Act), including advertisements, articles, notices or other communications published in any newspaper, magazine, on a web site or in or on any similar media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
(5) The Investor acknowledges that (a) it has conducted its own investigation of the Company and the Shares and, in conducting its investigation, it has not relied on the Placement Agents or on any statements or other information provided by the Placement Agents concerning the Company or the terms of this offering, (b) it has had access to the Company’s filings made pursuant to the Exchange Act (the “Exchange Act Filings”) and such financial and other information as it has deemed necessary to make its decision to purchase the Shares, (c) has been offered the opportunity to ask questions of the Company and its auditors and received answers thereto, as it has deemed necessary in connection with its decision to purchase the number of Shares Shares, and Warrants set forth on (d) it will not hold the Signature PagePlacement Agents responsible for any statements in or omissions from any publicly available information, has received including the Company’s Exchange Act Filings.
(6) The Investor understands that the Company, the Placement Agents and is relying only others will rely upon the Disclosure Package truth and accuracy of the representations, acknowledgements and agreements contained herein and agrees that if any of the representations and acknowledgements deemed to have been made by it by its purchase of the Shares is no longer accurate, the Investor shall promptly notify the Company and the documents incorporated by reference thereinPlacement Agents. If the Investor is acquiring Shares as a fiduciary or agent for one or more QIB investor accounts, it represents that it has sole investment discretion with respect to each such account, and it has full power to make the foregoing representations, acknowledgements and agreements on behalf of such account.
4.2 (a) No 5.2. The Investor acknowledges that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have no responsibility for making any independent investigation of the information provided as part of the due diligence process and make no representation or warranty to the Investor, express or implied, with respect to the Company or the Shares or the accuracy, completeness or adequacy of the information provided or any publicly available information, nor shall any of the foregoing persons be liable for any loss or damages of any kind resulting from the use of the information contained therein or otherwise supplied to the Investor.
5.3. The Investor acknowledges that no action has been or will be as of the Closing taken in any jurisdiction outside the United States by the Company or the Placement Agent Agents that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares (including any filing of a registration statement), in any jurisdiction outside the United States where action for that purpose is required, (b) if the . The Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense. Neither the Placement Agent is not authorized Investor nor any other person acting on its behalf will, directly or indirectly, offer or sell any securities of the same or similar classes as the Shares, or take any other action, so as to make and has not made any representation, disclosure or use of any information in connection with cause the issue, placement, purchase offer and sale of the Shares and Warrants, except as set forth or incorporated by reference in to fail to be entitled to an exemption from the Base Prospectus, registration requirements of the Prospectus Supplement or any free writing prospectusSecurities Act.
4.3 5.4. The Investor has full right, power, authority and capacity to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this AgreementAgreement and the Ancillary Agreements. This Agreement has been, and at Closing, the Ancillary Agreements will be, duly and validly executed and delivered by the Investor and, assuming the due authorization, execution and delivery by the Investor, this Agreement constitutes, and (bas of the Closing) this Agreement constitutes each of the Ancillary Agreements will constitute, a valid valid, binding, and binding enforceable obligation of the Investor enforceable against the Investor in accordance with its termsInvestor, except as the enforceability of the Agreement or the Ancillary Agreements may be subject to or limited by applicable bankruptcy, insolvency, reorganization, moratorium or arrangement, moratorium, other similar laws relating to or affecting creditors’ the rights of creditors generally.
5.5. The entry into and contracting parties’ rights generally performance of this Agreement and except as enforceability may be subject to general principles the Ancillary Agreements by the Investor and the consummation by the Investor of equity the transactions contemplated hereby and thereby will not (regardless of whether such enforceability is considered i) result in a proceeding in equity violation of the organizational documents of the Investor, (ii) conflict with, or at law) and except as constitute a default under, or give to the enforceability of others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to indemnification which the Investor is a party, or contribution that may be violative (iii) result in the violation of the public policy underlying any law, rule rule, regulation, order, judgment or regulation decree (including any federal or and state securities lawlaws) applicable to the Investor, rule except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or regulation)violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Investor to perform its obligations hereunder.
4.4 5.6. The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares and Warrantshas made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares.
5.7. The Investor also understands represents and warrants that there is no established public trading market for it has all consents, approvals, orders, authorizations, filings in relation to any governmental entity necessary to purchase the Warrants being offered Accepted Shares in accordance with the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing terms of the Warrants on any securities exchangethis Agreement.
5.8. The Investor understands that without an active marketcovenants to hold confidential, and not disclose to any third party, the liquidity Placement Agent Agreement or any written or oral advice rendered by either Placement Agent in connection with the Placement Agent Agreement or the Offering without the prior written consent of the Warrants will be limited.
4.5 The Placement Agents and the Company, except that the Investor will maintain the confidentiality of all may disclose such information acquired as a result of the transactions contemplated hereby prior (i) to the public disclosure of its financial advisors, tax advisors, accountants, attorneys, agents and other representatives, provided that such persons agree to hold confidential such information by the Company substantially in accordance with Section 13 the terms of this Annex.
4.6 Since Section 5.8 or (ii) as may be required pursuant to a subpoena, order of request issued by a court of competent jurisdiction or by a judicial, administrative, legislative or regulatory body (provided that the time at which Investor shall promptly notify the Company and the Placement Agent first contacted Agents of any such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securitiesdisclosure). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor further agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B none of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the and its financial advisors, tax advisors, accountants, attorneys, agents or other representatives shall be entitled to rely on any such advice provided by either Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Share Purchase Agreement (P2 Capital Partners, LLC), Share Purchase Agreement (UTi WORLDWIDE INC)
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities (including the Warrant Shares), including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities (including the Warrant Shares), (b) the Investor has answered all questions on the Signature Page and the Investor Questionnaire attached as Exhibit A hereto for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on the Signature Page, has received and is relying relied only upon any or all of the following: the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission, the Disclosure Package (as defined in the Agency Agreement) provided to the Investor and the documents incorporated representations and warranties of the Company contained herein and in the Agency Agreement and the Investor has not relied on any other information, if any, provided by reference thereinthe Placement Agents to the Investor.
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the any Placement Agent that would permit an offering of the Shares and WarrantsSecurities (including the Warrant Shares), or possession or distribution of offering materials in connection with the issue of the Securities (including the Warrant Shares) in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities (including the Warrant Shares) or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is Agents are not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsSecurities (including the Warrant Shares), except as set forth or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or any free writing prospectusthe Disclosure Package (as defined in the Agency Agreement).
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Securities (including the Warrant Shares) constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for Securities (including the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedWarrant Shares).
4.5 The Investor will maintain Since the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by date on which the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the or any Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined hereinbelow) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 4.6 The Investor is acquiring hereby acknowledges that (a) the Shares and Warrants (including, upon the exercise price of the Warrants, Securities set forth in this Agreement was established by the Warrant Shares) solely for such Investor’s own account for investment purposes only Company following discussions and not arms-length negotiations with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant SharesInvestors, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be is capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying onunderstanding, and did not become aware understands and accepts, the terms, risks and conditions of the Offering through transactions contemplated by this Agreement; (b) the Placement Agents are not acting as fiduciaries or as a result of, any form advisors of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio the Company or the Internet Investor and (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sitesc) the Company’s engagement of the Placement Agents in connection with the Offering offering and sale of the Securities process leading up to the offering is as independent contractors and is not subscribing for in any other capacity. The Investor agrees that it will not claim that the Securities and did not become aware of the Offering through or as a result Placement Agents have rendered advisory services of any seminar nature or meeting to which the Investor was invited byrespect, or owe any solicitation of a subscription by, a person not previously known fiduciary or similar duty to the Investor Investors, in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees transaction or the like relating to this Agreement or the transactions contemplated herebyprocess leading thereto.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Placement Agency Agreement (Avi Biopharma Inc), Subscription Agreement (Avi Biopharma Inc)
Representations, Warranties and Covenants of the Investor. To induce the Corporation to accept this subscription, the Investor represents, warrants and covenants as follows:
a) The Investor acknowledgeshas been furnished and has carefully read the Memorandum relating to the offering of the Shares by the Corporation, represents including all the appendices thereto including a form of the Stockholders Agreement. The Investor is not relying upon any other information, representation or warranty by the Corporation or any agent of it in determining to invest in the Corporation. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal and warrants related matters concerning an investment in the Shares and on that basis believes that an investment in the Shares is suitable and appropriate for the Investor.
b) The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, is able to bear the economic risks and lack of liquidity of an investment in the Shares, is able to bear the risk of loss of its entire investment in the Shares and understands the risks of, and other considerations relating to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares Shares, including the matters set forth under the caption “Risk Factors” in the Memorandum.
c) The Investor acknowledges that he/she/it has prior investment experience, including investment in non-listed and Warrants, non-registered securities (including investments in securities issued limited partnerships), or the Investor has employed the services of an investment advisor, attorney or accountant to read all of the documents furnished or made available by the Company Corporation both to the Investor and investments to all other prospective investors in comparable companies, (b) has answered all questions the Shares and to evaluate the merits and risks of such an investment on the Signature Page Investor’s behalf, and that the Investor recognizes the highly speculative nature of this investment.
d) The Investor acknowledges receipt and careful review of the Memorandum and hereby represents that the Investor has been furnished by the Corporation, to the extent commercially reasonable, during the course of this transaction with all information regarding the Corporation which the Investor had requested or desired to know; that all documents which could be reasonably provided have been made available for the Investor’s inspection and review, and that the Investor has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Corporation concerning the terms and conditions of the offering, and any additional information requested.
e) The Investor understands that the Shares have not been registered under the Securities Act, the securities laws of any state thereof or the securities laws of any other jurisdiction, nor is such registration contemplated. The Investor understands and agrees further that the Shares must be held indefinitely and may be transferred only in accordance with the restrictions set forth in a legend substantially in the form set forth below which will be placed on the certificate or certificates evidencing the Shares issued to the Investor at the Closing: THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS AGREEMENT, DATED EFFECTIVE AS OF [________________], A COPY OF WHICH IS AVAILABLE FOR EXAMINATION AT THE PRINCIPAL OFFICES OF FIVE STAR BANCORP, AND MAY NOT BE OFFERED, SOLD TRANSFERRED, HYPOTHECATED, PLEDGED, GIVEN OR OTHERWISE DISPOSED OF EXCEPT IN STRICT AND FULL ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT.
f) The Investor is purchasing the Shares for the Investor’s own account, with the intention of holding the Shares for investment and with no present intention of dividing or allowing others to participate in this investment or of reselling or otherwise participating, directly or indirectly, in a distribution of the Shares. The Shares to be acquired hereunder are being acquired by the Investor for investment purposes only and not with a view to resale or distribution.
g) To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Corporation, the offering of the Shares or any statement made in the Memorandum, and the Investor Questionnaire has been afforded the opportunity to ask questions of representatives of the Corporation concerning the Corporation and the terms and conditions of the offering, and to obtain any additional information necessary to verify the accuracy of the information set forth in the Memorandum and other information provided by the Corporation.
h) The attached Investor Questionnaire that the Investor has completed and all of the statements, answers thereto and information therein are true and correct as of the date hereof and will be true and correct as of the Closing Date date of the Closing. The Investor Questionnaire is incorporated herein by this reference.
i) The foregoing representations, warranties, and (c) in connection with its decision to purchase covenants and all other information which the number of Shares and Warrants set forth on Investor has provided concerning the Signature Page, has received and is relying only upon the Disclosure Package Investor and the documents incorporated by reference thereinInvestor’s financial condition are true and accurate as of the date hereof. The Investor agrees to immediately notify the Corporation if any information, representations, warranties, and covenants of the Investor contained in this Subscription Agreement, including the Investor Questionnaire, becomes untrue prior to the Closing.
4.2 j) The Investor (a) No action has been excluding an Investor who is a director or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering officer of the Shares Corporation) hereby represents and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for warrants that purpose is required, (b) if even though the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale a shareholder of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the OfferingCorporation, the Investor has not disclosed no plan, agreement, arrangement or understanding with the Corporation or any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales shareholder of the securities Corporation regarding acquiring, holding, voting or disposing of common stock of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokersCorporation.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Five Star Bancorp), Subscription Agreement (Five Star Bancorp)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire attached hereto as Exhibit A and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Date, (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and (d) is either an “accredited investor” as defined in Rule 501(a) under the Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Act.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, required and (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusexpense.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain Since the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by date on which the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such the Investor about the OfferingOffering (the “Initial Date”), the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting tax and other advisors) and has not engaged in any purchases or sales of involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will has not engage engaged in any purchases or sales of involving the securities of the Company (including Short Sales) prior to during the period commencing on the Initial Date and ending at the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker US broker-dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Tennessee Commerce Bancorp, Inc.), Subscription Agreement (Tennessee Commerce Bancorp, Inc.)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only solely upon the Disclosure Package and the documents incorporated by reference thereintherein and (ii) the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth in the Company’s public filings (which are available via EDGAR) or incorporated ▇▇▇▇rporated by reference in the Base Prospectus or the Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (H&r Block Inc), Subscription Agreement (H&r Block Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companiescompanies and has reviewed the Offering Materials; (ii) the Investor is acquiring the Shares in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, and no arrangement or understanding exists with any other person regarding the distribution of such Shares; (biii) has answered all questions the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, including the prospectus delivery requirements thereunder if applicable, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the information provided by the Investor on the Signature Page and the Investor Questionnaire and the answers thereto are signature page is true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only relied upon the Disclosure Package representations and warranties of the Company contained herein, the Offering Materials and the legal opinion of counsel to the Company and other documents incorporated delivered by reference thereinor on behalf of the Company at the Closing. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an a public offering of the Shares and WarrantsShares, or possession or distribution of the Offering Materials or any other offering or publicity materials in connection with relating to the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if .
5.3 The Investor understands that the Shares are "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection the Investor represents that it is outside familiar with SEC Rule 144, as presently in effect, and understands the United States, it will comply with all applicable laws resale limitations imposed thereby and regulations by the Securities Act.
5.4 It is understood that the stock certificates for the Shares shall bear a legend in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense substantially the following form unless and (c) until the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale resale of the Shares pursuant to an effective Registration Statement or until the Shares may be sold under Rule 144 without restrictions: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR, THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
5.5 The Investor further represents and Warrantswarrants to, except as set forth or incorporated by reference in the Base Prospectusand covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreement of any rights to indemnification or contribution that the Investor herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Purchase Agreement (Cerus Corp), Purchase Agreement (Cerus Corp)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only solely upon (i) the Disclosure Package and the documents incorporated by reference thereintherein and (ii) the Offering Information.
4.2 The Investor acknowledges that (a) No no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, the Disclosure Package or the Prospectus Supplement or any free writing prospectusSupplement.
4.3 The Investor acknowledges that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the ProspectusDisclosure Package, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined hereinbelow) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Astex Pharmaceuticals, Inc), Subscription Agreement (Supergen Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities Shares and Warrants in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsSecurities, except as set forth or incorporated by reference in the Base ProspectusRegistration Statement, the Prospectus Supplement or any free writing prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the OfferingWarrants, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any national securities exchangeexchange or other trading market. The Investor understands that without an active trading market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about provided the material pricing terms of the Offering, the Investor has not disclosed any material pricing information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Subscription Agreement (Moleculin Biotech, Inc.), Subscription Agreement (Moleculin Biotech, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Company's SEC Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached hereto as Exhibit B, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantswithout effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability effectiveness of the Registration Statement, directly or indirectly sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Shares, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including, without limitation, any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal or state securities law, rule or regulation)significant part of its value from the Common Stock of the Company.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pharmacopeia Inc), Stock Purchase Agreement (Pharmacopeia Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor Questionnaire has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, provided that the Company complies with its obligations under Section 7.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability of any rights to indemnification or contribution that may be violative effectiveness of the public policy underlying Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any lawright with respect to (collectively, rule a "Disposition") the Shares in violation of the Securities Act, nor will Investor engage in any hedging or regulation (including other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Shares by the Investor or any federal other person or state securities law, rule or regulation)entity in violation of the Securities Act.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and Package, the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if If the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusexpense.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the any Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities), and has not violated its obligations of confidentiality. The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) or disclose any information about the contemplated offering (other than to its advisors that are under a legal obligation of confidentiality) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Placement Agent Agreement (Cytokinetics Inc), Subscription Agreement (Cytokinetics Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges5.1 Each Investor, severally and not jointly, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsPreferred Stock, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Preferred Stock; (bii) the Investor is acquiring the Preferred Stock set forth in Annex I to the Agreement in the ordinary course of business and for its own account for investment only and with no present intention of distributing any of such Preferred Stock or the Securities or any arrangement or understanding with any other persons regarding the distribution of such Preferred Stock or the Securities, except in accordance with applicable securities law; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Preferred Stock or the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on in the Signature Page and the Investor Questionnaire Agreement and the answers thereto are true true, correct and correct complete in all material respects as of the date hereof and will be true true, correct and correct complete in all material respects as of the Closing Date date of each Closing; and (cv) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Preferred Stock set forth on in Annex I to the Signature PageAgreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents (which are incorporated herein by reference and which Investor acknowledges it has reviewed), the representations and warranties of the Company contained herein and the documents incorporated by reference thereinDisclosure Schedules. Each Investor understands its acquisition of the Preferred Stock has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Investor understands the Preferred Stock purchased hereunder must be held indefinitely unless there is an effective Registration Statement under the Securities Act with respect to the Preferred Stock or an exemption from registration available under the Securities Act and applicable state securities laws, and the Investor is able to bear the economic risk of an investment in the Preferred Stock.
4.2 (a) No 5.2 Each Investor, severally and not jointly, acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsPreferred Stock, or possession or distribution of offering materials in connection with the issue of the Securities Preferred Stock, in any jurisdiction outside the United States where legal action by the Company for that purpose is required.
5.3 Each Investor, (b) if severally and not jointly, hereby covenants with the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Preferred Stock or the Common Stock underlying the Preferred Stock without complying with the provisions of this Agreement and Warrantsall securities laws, and the Investor acknowledges that the certificates evidencing the Preferred Stock and the Common Stock underlying the Preferred Stock will be imprinted with a legend that prohibits their transfer except as set forth or incorporated by reference in accordance therewith. Upon the Base Prospectusearlier of (i) a registration statement covering the Common Stock underlying the Preferred Stock becoming effective and (ii) Rule 144 becoming available, the Prospectus Supplement or Investors shall be entitled to exchange their certificates representing the Common Stock for certificates that do not contain any free writing prospectusrestrictive legend.
4.3 The 5.4 Each Investor, severally and not jointly, further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, (ii) the execution and delivery of this Agreement, the purchase of the Preferred Stock under the Agreement, the fulfillment of the terms of the Agreement and the consummation of the transactions contemplated hereby will not conflict with or constitute a violation of, or default (with the passage of time or otherwise) under the charter, bylaws or other organizational documents of the Investor, and (biii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy restricted Preferred Stock or underlying Common Stock acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 The 5.6 Each Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor Investors in connection with the purchase and sale of the Shares and Warrants Preferred Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered Preferred Stock.
5.7 Except as disclosed in the OfferingDisclosure Schedule, the Investors have not dealt with any broker or finder in connection with the transactions contemplated by the Agreement, and that the Company does Investors have not expect such a market to develop. In additionincurred, and shall not incur, directly or indirectly, any liability for any brokerage or finders’ fees or agents commissions or any similar charges in connection with the Company does not intend to apply for listing of transactions contemplated by the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedAgreement.
4.5 The 5.8 Investor will maintain is not purchasing the confidentiality of all information acquired Preferred Stock as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Preferred Stock published in any newspaper, magazine or similar media or broadcast over television, television or radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of presented at any seminar or meeting to which the Investor was invited by, any other general solicitation or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generallygeneral advertisement.
4.10 The 5.9 Each Investor meets has independently evaluated the suitability standards set forth in Part B merits of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant its decision to purchase a number of shares equal to 8% of Preferred Stock, such decision has been independently made by such Investor and such Investor confirms that it has only relied on the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings advice of its debt own business and/or legal counsel and equity securities, and not on the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares advice of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the or any other Investor’s business and/or legal counsel in making such decision.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Power Efficiency Corp), Securities Purchase Agreement (Power Efficiency Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, to and agrees with, covenants with the Company and the Placement Agent that:
4.1 The Investor (a) The Investor, taking into account the personnel and resources it can practically bring to bear on the purchase of the Shares contemplated hereby, is knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company Company, and investments in comparable companieshas requested, (b) has answered received, reviewed and considered all questions on the Signature Page and information the Investor Questionnaire knows about and deems relevant (including the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (cSEC Documents) in connection with its making an informed decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereinShares.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if The Investor is acquiring the Shares pursuant to this Agreement for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other Persons regarding the distribution of such Shares, except in compliance with Section 5.1(c).
(c) The Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the securities purchased hereunder except in compliance with the Securities Act, applicable blue sky laws, and the rules and regulations promulgated thereunder.
(d) The Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act or a Qualified Institutional Buyer within the meaning of Rule 144A promulgated under the Securities Act.
(e) The Investor has all requisite corporate power, and has taken all requisite corporate action, to authorize, execute and deliver this Agreement and each of the other agreements and instruments contemplated herein to which the Investor is outside the United Statesa party, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby herein and has taken therein and to carry out and perform all necessary action to authorize of the execution, Investor’s obligations hereunder and thereunder. Upon the execution and delivery and performance of this Agreement, and (b) this Agreement constitutes shall constitute a valid and binding obligation of the Investor Investor, enforceable against the Investor in accordance with its terms, except (i) as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ and contracting parties’ rights generally and (ii) as limited by equitable principles generally, including any specific performance.
(f) The Investor is not a broker or dealer registered pursuant to Section 15 of the Exchange Act (a “registered broker dealer”) and is not affiliated with a registered broker dealer. The Investor is not party to any agreement for distribution of any of the Shares.
5.2 The Investor has not, either directly or indirectly through an affiliate, agent or representative of the Company, engaged in any transaction in the securities of the Company other than with respect to the transactions contemplated herein, since the time that the Investor was first contacted by the Company or any other Person regarding the transactions contemplated hereby until the date hereof, except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered set forth in a proceeding in equity or at law) and except as filings made with the Commission pursuant to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)Exchange Act.
4.4 5.3 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Coherus BioSciences, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Securities set forth in Section 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on in Section 3 of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Securities has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities Securities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Securities without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Securities will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Securities acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedSecurities.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants toto the Company, as of the date hereof and as of the Closing Date, and agrees withwith the Company, the Company and the Placement Agent thatas follows:
4.1 (a) The Investor (ai) has had full access to the Disclosure Package, including the Company’s periodic reports and other information incorporated by reference therein, prior to or in connection with its receipt of this Purchase Agreement, (ii) is knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities presenting Shares representing an investment decision like that involved in the purchase of the Shares, and (iii) is acquiring the Shares for its own account, or an account over which it has investment discretion, and Warrantsdoes not have any agreement or understanding, including investments in securities issued by directly or indirectly, with any person or entity to distribute any of the Company and investments in comparable companies, Shares.
(b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature PageThe Investor, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and expense.
(c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor further represents and warrants to the Company that (i) the Investor has full right, the requisite power, authority and capacity to enter into this Purchase Agreement and to consummate the transactions contemplated hereby and has taken otherwise to carry out its obligations hereunder; (ii) the execution and delivery of this Purchase Agreement by the Investor and the consummation by it of the transactions contemplated hereunder have been duly authorized by all necessary action to authorize on the execution, delivery and performance part of this Agreement, the Investor; and (biii) this Purchase Agreement constitutes a has been duly executed by the Investor and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable any bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ and contracting parties’ rights generally and except as enforceability may be subject to or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 (d) The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or Company has not provided it with any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment adviceadvice in connection with its purchase of Shares. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
(e) From and after obtaining the knowledge of the sale of the Shares and Warrants. The contemplated hereby, neither the Investor also understands that there is no established public trading market for nor any person or entity acting on behalf of, or pursuant to any understanding with or based upon any information received from the Warrants being offered in the OfferingInvestor, has taken, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure announcement of the transaction shall not take, any action that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, has caused or will cause the Investor has not disclosed to have, directly or indirectly, sold or agreed to sell any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases shares of Preferred Stock or sales shares of the securities of Company’s common stock, par value $0.01 per share (the Company “Common Stock”), effected any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the ▇▇▇▇ ▇▇▇) with respect to the Preferred Stock or the Common Stock, granted any other right (including, without limitation, any Short Sales (as defined hereinput or call option) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior with respect to the time Preferred Stock or the Common Stock, or with respect to any security that includes, relates to or derives any significant part of its value from the transactions contemplated by this Agreement are publicly disclosedPreferred Stock or the Common Stock, whether or not, directly or indirectly, in order to hedge its position in the Shares. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Purchase Agreement to cover any short position in the Preferred Stock or the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 (f) The Investor is acquiring represents that, except as set forth below, (i) it has had no position, office or other material relationship within the Shares and Warrants (including, upon past three years with the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view Company or persons known to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters it to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares affiliates of the Company’s common stock, which may give Placement Agent (ii) it is not a, and it has no direct or indirect affiliation or association with any, FINRA member or an Associated Person (as incentive to sell such term is defined under FINRA Membership and Registration Rules Section 1011) as of the Securities to the Investor.
4.13 The Investor is aware that date hereof, and (iii) neither it nor any group of investors (as identified in a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement public filing made with the Massachusetts Securities Division in 2001 pursuant Commission) of which it is a member, acquired, or obtained the right to which he agreedacquire, among other things20% or more of the Common Stock (or Shares convertible or exercisable for Common Stock) or the voting power of the Company on a post-transaction basis. Exceptions: (If no exceptions, never write “none.” If left blank, response will be deemed to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealerbe “none.”)
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledgesInvestor, severally and not jointly, represents and warrants to, and agrees with, to the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has had the opportunity to request and review all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page cover page hereto for its own account, or for the account of others for whom it acts as investment advisor only, for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act nor does the Investor have any arrangement or understanding with any other persons regarding the distribution of such Shares; provided, that this representation and warranty shall not limit the Investor's right to sell the Shares pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws, (iii) the Investor has filled in all requested information on the Selling Stockholder Notice and Questionnaire attached hereto as Exhibit C (the "Questionnaire") hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; and (civ) in connection with its decision to purchase the number Investor will notify the Company promptly of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken any material change in any jurisdiction outside of such information in the United States by Questionnaire until such time as the Investor has sold all of its Shares or until the Company or is no longer required to keep the Placement Agent Registration Statement effective. The Investor understands that would permit an offering its acquisition of the Shares and Warrantshas not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, or possession or distribution which exemptions may depend upon, among other things, the bona fide nature of offering materials in connection the Investor's investment intent as expressed herein.
5.2 The Investor hereby covenants with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof and, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable (unless the Investor is selling such Shares in a transaction not subject to the prospectus delivery requirement), and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the prospectus forming a part of the Registration Statement (the "Prospectus") until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 5.3 The Investor, severally and not jointly, further represents and warrants to the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification and contribution agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 5.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares other than as contemplated in Section 7 of this Agreement; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Company Information provided to the Investor by the Company in contemplation of this offering and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached hereto Exhibit B, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without satisfying the requirements of the Securities Act and Warrantsthe Rules and Regulations thereunder, except as set forth or incorporated by reference including in the Base Prospectusevent of resale under the Registration Statement, the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus Supplement forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or any free writing prospectusuntil the Company has amended or supplemented such Prospectus.
4.3 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 5.5 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation of the Investor Questionnaire Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Placement Memorandum and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire contained in Exhibit D to the Placement Memorandum, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.in
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, (b) the Investor has answered all questions on the Signature Page and Exhibit A attached hereto for use in preparation of the Investor Questionnaire Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying relied only upon any or all of the Disclosure Package following: the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 20-F and 6-K as filed by the Company with the Commission, any Time of Sale Information (as defined in the Placement Agreement) provided to the Investor and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein.
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or any free writing prospectusthe Time of Sale Information (as defined in the Placement Agreement).
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Each Investor will maintain represents, warrants and agrees that, since the confidentiality earlier to occur of all information acquired as a result of (i) the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the Placement Agent Agents first contacted such Investor about the OfferingOffering and (ii) the date that is the fifth (5th) trading day prior to the date of this Agreement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) ), except for transactions entered into on behalf of the Investor by third-party managers exercising investment discretion on behalf of the Investor, prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock Ordinary Shares if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Placement Agency Agreement (Progen Pharmaceuticals LTD)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act nor does the Investor have any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor Questionnaire has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof and, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 The Investor will not, prior to the enforceability effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal or state securities law, rule or regulation)significant part of its value from the Common Stock of the Company.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares set forth in Section 3 of the Signature Page to the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (vi) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep a registration statement effective; and (cvii) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PagePage to the Stock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company's officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Shares, and fully understands that the Shares are speculative investments, which involve a high degree of risk of loss of the Investor's entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption "Risk Factors" in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue issuance of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement , and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, except as set forth or incorporated by reference which are not readily marketable, is not excessive in view of the Investor's net worth and financial circumstances, and any purchase of the Shares will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusShares.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Shares.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the Shares to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor's representations made in this Agreement. The Investor understands that without an active market, the liquidity of the Warrants will Shares must be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of held indefinitely unless subsequently registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of Act and qualified under applicable state securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of unless an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company exemption from such subscribers; registration and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offeringqualification requirements is otherwise available. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent Company has acted as a placement agent no obligation to register or qualify the Shares for resale. The Investor acknowledges that the Company will refuse to register any transfer of Shares that is not made in accordance with the provisions of Regulation S, registered pursuant to the Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Company in previous offerings of its debt and equity securitiesShares, and requirements relating to the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares Company which are outside of the Company’s common stockInvestor's control, and which the Company is under no obligation and may give Placement Agent not be able to satisfy. The Investor has been independently advised as incentive to sell the Securities to the Investorapplicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares in such jurisdiction and it is aware of the risks and other characteristics of the Shares and of the fact that the undersigned may not resell the Shares except in accordance with applicable securities legislation and regulatory policy.
4.13 The 5.9 A copy of the Company annual report on Form 10-K, its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the SEC's website at www.sec.gov.
5.10 For purposes of compliance with the Reg▇▇▇▇▇▇▇ ▇ ▇xemption for the offer and sale of the Shares to non-U.S. Persons, if the Investor is aware that not a Managing Partner "U.S. Person," as such term is defined in Rule 902(k) of Regulation S,1 the Placement Agent’s New York, NY office, Investor represents and warrants they are a perso▇ ▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇at is outside the United States, entered into a final settlement with the Massachusetts Securities Division and further represents and warrants as follows: ---------- 1 Regulation S provides in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.part as follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of shares set forth in Section 3 of the Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants shares set forth on in Section 3 of the Signature PagePage to the Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the shares, and fully understands that the Shares are speculative investments, which involve a high degree of risk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrantsshares, or possession or distribution of offering materials in connection with the issue issuance of the Securities shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities shares, or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the shares, without complying with the provisions of this Agreement, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and Warrantsfinancial circumstances, except as set forth or incorporated by reference and any purchase of the shares will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base Prospectusshares.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the shares.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the shares to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor’s representations made in this Agreement. The Investor understands that without an active market, the liquidity of the Warrants will shares must be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of held indefinitely unless subsequently registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of Act and qualified under applicable state securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of unless an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company exemption from such subscribers; registration and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offeringqualification requirements is otherwise available. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent Company has acted as a placement agent no obligation to register or qualify the shares or underlying Shares for resale. The Investor acknowledges that the Company will refuse to register any transfer of Shares that is not made in accordance with the provisions of Regulation S, registered pursuant to the Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares and requirements relating to the Company in previous offerings which are outside of its debt and equity securitiesthe Investor’s control, and which the Placement Agent Company is under no obligation and its registered representatives received, may not be able to satisfy. The Investor has been independently advised as compensation to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for those offerings, warrants to purchase the Shares in such jurisdiction and it is aware of the risks and other characteristics of the shares and of the fact that the undersigned may not resell the Shares except in accordance with applicable securities legislation and regulatory policy.
5.9 A copy of the Company’s common stockannual report on Form 10-K, which may give Placement Agent as incentive to sell its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement AgentSEC’s New York, NY office, website at ▇▇▇▇▇▇ ▇. .▇▇▇.▇▇▇▇▇▇▇▇, entered into a final settlement .
5.10 For purposes of compliance with the Massachusetts Securities Division Regulation S exemption for the offer and sale of the Shares (defined in 2001 pursuant this Section 5.10 to which he agreedinclude the underlying Shares) to non-U.S. Persons, among other things, never to seek to register with if the Massachusetts Securities Division Investor is not a “U.S. Person,” as such term is defined in any capacity. The settlement resolved allegations that ▇▇. ▇Rule 902(k) of ▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at ▇,▇ the Investor represents and warrants that the Investor is a prior broker-dealer.person or entity that is outside the United States, and further represents and warrants as follows:
Appears in 1 contract
Sources: Securities Purchase Agreement (Petrosonic Energy, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Paragraph 3 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that neither this Offering nor the acquisition of the Shares have been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein and the information provided in the Investor's Investor Questionnaire. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action for that purpose is required, (b) if by the
5.3 The Investor hereby covenants with the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Esperion Therapeutics Inc/Mi)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares set forth in Section 3 of the Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PagePage to the Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Shares, and fully understands that the Shares are speculative investments, which involve a high degree of risk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue issuance of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, except as set forth or incorporated by reference which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Shares will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusShares.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Shares.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the Shares to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor’s representations made in this Agreement. The Investor understands that without the Shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an active marketexemption from such registration and qualification requirements is otherwise available. Other than “piggyback” registration rights set forth in Section 4.7, which are afforded to the Investor only until the Shares are eligible for re-sale pursuant to Rule 144 of the Securities Act of 1933, as amended, the liquidity of Investor acknowledges that the Warrants will be limited.
4.5 Company has no obligation to register or qualify the Shares for resale. The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of acknowledges that information by the Company will refuse to register any transfer of Shares that is not made in accordance with Section 13 the provisions of this AnnexRegulation S, registered pursuant to the Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Shares, and requirements relating to the Company which are outside of the Investor’s control, and which the Company is under no obligation and may not be able to satisfy. The Investor has been independently advised as to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares in such jurisdiction and it is aware of the risks and other characteristics of the Shares and of the fact that the undersigned may not resell the Shares except in accordance with applicable securities legislation and regulatory policy.
4.6 Since 5.9 A copy of the time Company’s annual report on Form 10-K, its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the SEC’s website at ▇▇▇.▇▇▇.▇▇▇.
5.10 For purposes of compliance with the Regulation S exemption for the offer and sale of the Shares to non-U.S. Persons, if the Investor is not a “U.S. Person,” as such term is defined in Rule 902(k) of ▇▇▇▇▇▇▇▇▇▇ ▇,▇ the Investor represents and warrants they are a person or entity that is outside the United Sates, and further represents and warrants as follows:
(a) The Investor is not acquiring the Shares for the account or benefit of a U.S. Person.
(b) If the Investor is a legal entity, it has not been formed specifically for the purpose of investing in the Company.
(c) The Investor hereby represents that he, she or it has satisfied and fully observed the laws of the jurisdiction in which he, she or it is located or domiciled, in connection with the Placement Agent first contacted acquisition of the Shares, including (i) the legal requirements of the Investor’s jurisdiction for the acquisition of the Shares, (ii) any foreign exchange restrictions applicable to such Investor about acquisition, (iii) any governmental or other consents that may need to be obtained, and (iv) the Offeringincome tax and other tax consequences, if any, which may be relevant to the holding, redemption, sale, or transfer of the Shares; and further, the Investor has not disclosed any information regarding agrees to continue to comply with such laws as long as he, she or it shall hold the Offering to any third parties Shares.
(other than its legal, accounting and other advisorsd) and has not engaged in any purchases or sales To the knowledge of the securities Investor, without having made any independent investigation, neither the Company nor any person acting for the Company, has conducted any “directed selling efforts” in the United States as the term “directed selling efforts” is defined in Rule 902 of Regulation S, which, in general, means any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the marketing in the United States for any of the Company (includingShares being offered. Such activity includes, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales mailing of the securities of the Company (including Short Sales) prior printed material to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position investors residing in the Common Stock if doing so would be United States, the holding of promotional seminars in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the boxUnited States, and all types the placement of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined advertisements with radio or television stations broadcasting in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers United States or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not in publications with a view to or intent of resale or distribution thereofgeneral circulation in the United States, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part which discuss the offering of the Shares. To the knowledge of the Investor, the Warrants, or Shares were not offered to the Warrant Sharesundersigned through, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and undersigned is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising includingadvertising, including without limitation, (i) any advertisement, article, notice, advertisement notice or other communication published in any newspaper, magazine or similar media or broadcast over televisiontelevision or radio, radio or the Internet and (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sitesii) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was whose attendees have been invited by, by any general solicitation or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generallygeneral advertising.
4.10 The Investor meets the suitability standards set forth __________________________________ 1 Regulation S provides in Part B of the Investor Questionnaire attached hereto part as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Exhibit B is expressly incorporated herein by reference; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) the Investor has not received from the Company or Placement Agent any information regarding the Company or the Shares, other than the Company Information. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Shares, and fully understands that the Shares are speculative investments, which involve a high degree of risk of loss of the Investor's entire investment. The Investor understands that (a) its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, (b) that the Shares therefore cannot be resold unless they are registered under the Act or when an exemption from registration is available, and (c) in connection with its decision to purchase that the number of certificates for the Shares will bear a legend stating that they have not been registered under federal or state securities law and Warrants set forth on the Signature Page, has received and cannot be resold unless they are registered or an exemption from registration is relying only upon the Disclosure Package and the documents incorporated by reference thereinavailable.
4.2 (a) No 5.2 The Investor acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required. If Investor is not a "U.S. Person" as defined under Regulation S of the Securities Act, (b) if the Investor is outside the United States, it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense. The Investor acknowledges that the Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares.
5.3 The Investor covenants not to sell, offer to sell or otherwise transfer the Shares unless (a) the Investor has satisfied the prospectus delivery requirement under the Securities Act, if applicable, (b) the sale or transfer is in compliance with the terms of this Agreement, and Warrants(c) such disposition is pursuant to an effective Registration Statement or is exempt from registration under the Securities Act. The Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that, except subject to Section 7.2, there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference until the Company has amended or supplemented such Prospectus. Notwithstanding anything to the contrary contained in the Base Prospectusthis Agreement, the Prospectus Supplement Investor shall be permitted to transfer the Shares to any other person or entity that is controlled by such Investor, controls such Investor or is under common control with such Investor, including, any free writing prospectusfunds or accounts advised by such Investor's investment advisor, provided that the transfer transaction meets the registration requirements of the Securities Act or is exempt from registration under the Securities Act and that the transferee agrees to be bound by the terms hereof.
4.3 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and legally binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.5 The Investor will not, prior to the effectiveness of the Registration Statement, engage in any hedging transaction effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Shares (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company. The Company may impose stop-transfer instructions with respect to the Shares subject to the foregoing restriction until the effectiveness of the Registration Statement.
5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ciber Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledgesseverally, but not jointly with any other Investor, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and Warrantsthe Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and the Warrant; (bii) the Investor is acquiring the Warrant to purchase the number of Warrant Shares and the number of Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrant or Warrant Shares or entering into any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares, Warrant or Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and and, unless otherwise disclosed to the Company in writing prior to the Closing Date, will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information which is required to be disclosed in the Registration Statement until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants the Warrant to purchase the number of Warrant Shares, each as set forth on in Section 3 of the Signature PageStock and Warrant Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor severally, but not jointly with any other Investor, acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, Warrant or Warrant Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares and WarrantsWarrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, except as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Between the time the Investor learned about the Offering and the Expiration Date, the Investor has not engaged in any transaction (including short sales or similar transactions) with respect to the enforceability of Common Stock, nor has the Investor, directly or indirectly, caused any rights person to indemnification engage in any transaction (including short sales or contribution that may be violative similar transactions) with respect to the Common Stock. The Investor will not use any of the public policy underlying Shares or the Warrant acquired pursuant to this Agreement, or the Warrant Shares acquired pursuant to the Warrant, to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Warrant.
5.7 The Company acknowledges and agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards those specifically set forth in Part B Sections 5 and 16(a) of this Agreement, or in the Investor Questionnaire attached hereto as Annex IIQuestionnaire.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Rita Medical Systems Inc)
Representations, Warranties and Covenants of the Investor. 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (ii) the Investor understands that the Securities are "restricted securities" and have not been registered under the Securities Act or any applicable state securities law and is acquiring the number of Shares and Investor Warrants set forth in paragraph 3 of the Agreement to which this Annex is attached in the ordinary course of its business and for its own account for investment only, has no present intention of distributing any of such Securities and has no arrangement or understanding with any other persons regarding the distribution of such Securities (this representation and warranty not limiting the Investor's right to sell the Common Stock pursuant to the Registration Statement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the Placement Agent that:
4.1 The respective rules and regulations promulgated thereunder; (iv) the Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on in paragraph 3 of the Signature Page Agreement to which this Annex is attached and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares, Common Stock and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Investor Warrants set forth on the Signature Pagesignature page to the Agreement to which this Annex is attached, has received and is relying relied only upon the Disclosure Package representations and warranties of the Company contained herein and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken information contained in any jurisdiction outside the United States by SEC Reports. The Investor understands that the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if to the Investor is outside has not been registered under the United StatesSecurities Act, it will comply with all applicable laws and regulations or registered or qualified under any state securities law in each foreign jurisdiction in reliance on specific exemptions therefrom, which it purchasesexemptions may depend upon, offersamong other things, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the bona fide nature of the Investor's investment intent as expressed herein. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares Securities, and Warrants, except as set forth no person is authorized to provide any representation which is inconsistent or incorporated by reference in addition to those in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment adviceSEC Reports. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent it has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investornot received or relied on any such representations.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Novatel Wireless Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 (a) The Investor (ai) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsInvestor Shares, including investments in securities issued by the Company and investments in comparable companies, (bii) has answered all questions on the Signature Page and the Investor Questionnaire signature pages hereto and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (ciii) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature PageInvestor Shares, has received (or otherwise had made available to it by the filing by the Company of an electronic version thereof with the Commission) prior to or in connection with the receipt of this Subscription Agreement, and is relying only upon the Disclosure Package and (including the documents incorporated by reference therein) in making its decision to purchase the Investor Shares.
4.2 (ai) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if If the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Investor Shares or has in its possession or distributes any offering material, in all cases at its own expense and (cii) no agent of the Placement Agent is not Company has been authorized to make and no such agent has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsInvestor Shares, except as set forth in or incorporated by reference in the Base Prospectus, Prospectus or the Prospectus Supplement or any free writing prospectusas otherwise contemplated by this Subscription Agreement.
4.3 (c) (i) The Investor has full right, power, authority and capacity to enter into this Subscription Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Subscription Agreement, and (bii) this Subscription Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 (d) The Investor Shares to be purchased by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Investor’s right at all times to sell or otherwise dispose of all or any part of such Investor Shares in compliance with applicable federal and state securities laws. If the Investor is an affiliate of the Company (within the meaning of Rule 144 promulgated under the Securities Act), the Investor acknowledges and understands that the Investor Shares may not be resold by the Investor unless such resale is registered under the Securities Act or such resale is effected pursuant to a valid exemption from the registration requirements of the Securities Act.
(e) The Investor understands that nothing in this Subscription Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Investor Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for Shares.
(f) Since the Warrants being offered in the Offering, and that date on which the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent or its agents first contacted such Investor about the Offering, the Investor has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with the Investor, disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not or engaged in any purchases or sales of transactions in the securities of the Company (including, without limitationlimitations, any Short Sales short sales (as defined hereinin Rule 200(a) of Regulation SHO) involving the Company’s securities). The Investor covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Salesshort sales) prior to the time that the transactions contemplated by this Subscription Agreement are publicly disclosed.
(g) On or before the Closing Date, the Investor will deliver to the Company an executed lock-up agreement in form and substance acceptable to the Company. The Investor agrees understands that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action Other Investors will execute lock-up agreements that would give rise to any claim are the same in all material respects as the lock-up agreement executed by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, (b) the Investor has answered all questions on the Signature Page and the Investor Questionnaire attached as Exhibit A attached hereto for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying relied only upon any or all of the Disclosure Package following: the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission, any Time of Sale Information (as defined in the Agency Agreement) provided to the Investor and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein.
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the any Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is Agents are not authorized to make and has have not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or any free writing prospectusthe Time of Sale Information (as defined in the Agency Agreement).
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain Since the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by date on which the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which or the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined hereinbelow) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company as follows:
(i) The Investor is an "accredited investor" as defined in Regulation D promulgated under the Securities Act, or a non-U.S. person as defined in Regulation S promulgated under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, including without limitation, the Confidential Private Placement Memorandum dated July 10, 2003, as supplemented by the Company, and all exhibits attached thereto and incorporated by reference therein (bthe "Memorandum")and information regarding Espotting Media, Inc.; (ii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of the Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor is able, without materially impairing its financial condition to hold the Shares for an indefinite period of time and to suffer a complete loss of its investment; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) the Investor Questionnaire has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Date; (cvi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; (vii) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information, and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein, (viii) Investor acknowledges that the Company does not have audited financial statements for Espotting Media, Inc. and that Investor has decided to go forward with this transaction without such financial statements; and (ix) there is no assurance that the Company's pending acquisition of Espotting Media, Inc. will be consummated. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor's compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 6.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells sells, or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense expense.
6.3 The Investor hereby covenants with the Company that the Investor has not been formed for the sole purpose of acquiring the Shares and (c) the Placement Agent is covenants not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 8.2 hereof, provided that the Company complies with its obligations under Section 8.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 8.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
6.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery delivery, and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium moratorium, or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
6.5 The Investor understands and agrees that all Shares may not be transferred by Investors in the absence of an effective registration statement under the Securities Act or evidence acceptable to the enforceability Company and its counsel, which may include an opinion of counsel, that registration is not required. The Investor understands and agrees that the Certificates representing Shares will contain the following restrictive legend: "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT."
6.6 The Investor hereby represents and warrants that execution and delivery of this Agreement by the Investor, the performance by the Investor of this Agreement and the consummation of the transactions contemplated hereby will not result in a material breach or violation of, or material conflict with, any of the terms or provisions of, or constitute a material default by the Investor under, any indenture, mortgage, deed of trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which such Investor or any of its properties is bound, any statute, or any judgment, decree, order, rule, or regulation or any court or governmental agency or body applicable to such Investor or any of its properties.
6.7 Investor will not directly or indirectly, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge, or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale, or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Shares shall bear a restrictive legend to the effect that the Shares have not been registered under the Securities Act of 1933, as amended and such Shares may not be sold or state securities law, rule transferred in the absence of an effective registration statement or regulation)pursuant to an exemption from registration.
4.4 6.8 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax tax, or investment advice. The Investor has consulted such legal, tax tax, and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares Shares.
6.9 The Investor agrees to use the information contained in this Agreement and Warrantsthe Memorandum for the sole purpose of evaluating a possible investment in the Company's shares and for no other purpose. The Investor also understands further agrees that there is no established public trading market for the Warrants being offered information contained in this Agreement and the OfferingMemorandum, and that the Company does not expect such a market all information given to develop. In additionInvestor regarding Espotting Media, the Company does not intend to apply for listing of the Warrants on any securities exchangeInc., is strictly confidential. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor further agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring prohibited from reproducing or distributing the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereofMemorandum, in whole or in part. The Investor has no agreement or arrangementfurther agrees that the existence and nature of all conversations regarding the Offering must be kept strictly confidential and that the federal securities laws impose restrictions on trading based on information regarding this offering. Specifically, formal or informalInvestor shall maintain in confidence all such information, together with any person to sell other non-public information regarding the Company obtained from the Company or transfer all or any part its agents during the course of the Shares, the Warrants, or the Warrant Shares, and the financing represented hereby. The Company has caused such materials to be delivered to Investor has no plans to enter into any in reliance upon such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable upon Rule 100(b)(2)(ii) of evaluating the merits and risks of an investment in Regulation FD as promulgated by the Securities and is able to bear the economic risks of such investmentExchange Commission.
4.9 The 6.10 If the Investor is unaware ofan individual, the Investor certifies that he or she is not nor to his or her knowledge has been designated, a "suspected terrorist" as defined in no way relying onExecutive Order 13224. If the Investor is a corporation, and did not become aware of the Offering through or as a result oftrust, any form of general solicitation or general advertising includingpartnership, without limitation, any article, notice, advertisement limited liability company or other communication published in any newspaperorganization, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited bycertifies that, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B best of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described hereinInvestor's knowledge, the Investor has taken no action that would give rise to any claim by any person for brokerage commissionsnot been designated, finders’ fees and is not owned or the like relating to this Agreement or the transactions contemplated hereby.
4.12 controlled by, a "suspected terrorist" as defined in Executive Order 13224. The Investor hereby acknowledges that the Placement Agent Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (i) none of the cash or property that the Investor will pay or will contribute to the Company has acted as a placement agent for been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (ii) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor's control, shall cause the Company to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company if any of these representations ceases to be true and accurate regarding the Investor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it is discovered that any of the foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to money laundering similar activities, the Company may undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor's investment in the Company. The Investor further understands that the Company may release confidential information about the Investor and, if applicable, any underlying beneficial owners, to proper authorities if the Company, in its sole discretion, determines that it is in the best interests of the Company in previous offerings light of its debt relevant rules and equity securities, and regulations under the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investorlaws set forth in subsection (ii) above.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants toto the Company, and agrees withcovenants for the benefit of the Company, the Company and the Placement Agent thatas follows:
4.1 The Investor (a) The Investor is knowledgeablean "accredited investor" as defined under Rule 501 of Regulation D promulgated under the Securities Act of 1933, sophisticated as amended (the "Securities Act");
(b) The Investor is acquiring the Shares for its own account and experienced in making, and is qualified not with a view to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase any distribution of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as violation of the date hereof and will be true and correct as of the Closing Date and Securities Act;
(c) The Investor acknowledges that it has significant prior investment experience, including investment in connection with its decision non-listed and non-registered securities, and that the Investor recognizes the highly speculative nature of this investment. In particular, and without limitation, the Investor represents that it understands that the Company’s securities have suffered significant illiquidity and decline in stock price and that other restricted shareholders are eligible to purchase sell securities pursuant to Rule 144 of the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action Securities Act. The Investor represents that it has been furnished with, and has reviewed, all of the Company’s securities filings and all documents and other information regarding the Company that the Investor had requested or will desired to know and all other documents which could be taken in any jurisdiction outside reasonably provided have been made available for the United States Investor’s inspection and review;
(d) The Investor acknowledges that the Shares have not been passed upon or reviewed by the Company Securities and Exchange Commission. The Investor agrees that it will not sell, transfer or the Placement Agent that would permit an offering otherwise dispose of any of the Shares and Warrantsuntil they are registered under the Securities Act, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for unless an exemption from such registration is available and that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference a legend substantially in the Base Prospectus, form as provided in Section 4 below will be placed on the Prospectus Supplement or any free writing prospectus.certificate(s) representing the shares to such effect;
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (be) this This Agreement constitutes a valid and binding agreement and obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to limitations on enforcement by general principles of equity and bankruptcy or other laws affecting the enforcement of creditors' rights generally;
(regardless f) Investor is not acquiring the Shares as part of whether a group, as such enforceability term is considered defined in a proceeding Section 13 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and is not acting in equity concert with any person acting in such manner. Investor makes its own voting and dispositive decisions and has not agreed to grant any proxy or at lawenter into any form of voting trust, agreement or similar arrangement with respect to the Shares; and
(g) This Agreement has been duly authorized, validly executed and delivered on behalf of the Investor, and the Investor has full power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform his obligations hereunder and thereunder.
(h) Investor understands and acknowledges existing holders of Notes (the “Notes”) and except as Warrants (the “Warrants”) issued in January of 2008 to certain investors and the enforceability of any rights placement agent (the “Note Holders”) have certain full ratchet and other anti dilutions protections attached to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares their Notes and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company shall have obtained partial waivers from the Note Holders which provide, in relevant part, that the Conversion Price (as defined in the Notes) of such Notes shall be reduced to (i) $0.20 if such Note Holder invests new monies in the Company pursuant to an offering of convertible notes with similar terms to their existing Notes (except at a lower conversion price) or (ii) $0.25 per share if such note Holder does not expect invest new monies, and further provide that such a market Note Holders waive any other anti dilution rights that would otherwise cause an adjustment to develop. In addition, the Company does not intend to apply for listing exercise price of the Warrants on or any securities exchange. The Investor understands other anti dilution rights that without would cause an active market, adjustment or adjustments to the liquidity nature of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired or Notes as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annexoffering.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (China Broadband Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants (as of the date hereof) to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities units presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and the representations, warranties, covenants and agreements of the Company contained in the Placement Agreement.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent Agents that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units or has in its possession or distributes any offering material, in all cases at its own expense and (c) none of the Placement Agent Agents is not authorized to make and or has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement or any free writing prospectusSupplement.
4.3 (a) The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor's execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor's certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the a Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s 's securities). The Investor covenants that it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated herein and (ii) not engage in any purchases or sales of the securities of the Company (including Short Sales) ), in each case prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Units acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “"Short Sales” " include, without limitation, all “"short sales” " as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “"put equivalent positions” " (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Houston American Energy Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation of the Investor Questionnaire Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Placement Memorandum and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached herein, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including the notification and Warrantssuspension provision of Section 7.2 hereof, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Placement Memorandum, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation of the Investor Questionnaire Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Placement Memorandum and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached as Exhibit B to the Placement Memorandum, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantswithout effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Placement Memorandum, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Neurocrine Biosciences Inc)
Representations, Warranties and Covenants of the Investor. 2.1. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, (b) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received reviewed the Disclosure Package and is relying only upon the Disclosure Package and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein.
4.2 2.2. The Investor further represents and warrants to, and covenants with, the Company that (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 2.3. The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and WarrantsShares.
2.4. The Investor also understands that there is no established public trading market for represents, warrants and agrees that, since the Warrants being offered in earlier to occur of (i) the Offering, and that date on which the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the OfferingOffering and (ii) the date of this Agreement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales of transactions in the securities of the Company in violation of securities laws (including, without limitation, any Short Sales (as defined herein) short sales involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Salesshort sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Salesshort sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934 (the “Exchange Act”), whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The 2.5. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Investor is acquiring herein will survive the Shares and Warrants (including, upon the exercise execution of the Warrantsthis Agreement, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known delivery to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, being purchased and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investorpayment therefor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Insmed Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. Shares.
5.7 The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such filed a market to develop. In additionregistration statement on Form S-1 under the Securities Act on January 5, the Company does not intend to apply 2001, as amended on January 26, 2001 and February 23, 2001, for listing a public offering of shares of the Warrants Company's Common Stock, that such public offering was never completed and has been abandoned and that such registration statement was withdrawn on any securities exchangeMarch 19, 2001. The Investor understands that without an active market, the liquidity Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration requirements of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities Act pursuant to Section 4(2) or Regulation D promulgated thereunder and, as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringresult, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales have the protection of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any Section 11 of the Securities acquired pursuant Act (15 U.S.C. 77k) with respect to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part purchase of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants (as of the date hereof) to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and the representations, warranties, covenants and agreements of the Company contained in the Placement Agreement.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent Agents that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) none of the Placement Agent Agents is not authorized to make and or has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth or incorporated by reference in the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement or any free writing prospectusSupplement.
4.3 (a) The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor’s execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the a Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated herein and (ii) not engage in any purchases or sales of the securities of the Company (including Short Sales) ), in each case prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (b) the Investor is acquiring the number of Preferred Shares and Warrants set forth in Article V of the attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (c) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (d) the Investor has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (e) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares and Warrant Shares; and (cf) the Investor has, in connection with its decision to purchase the number of Preferred Shares and Warrants set forth on in Article V of the Signature Pageattached Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither the Placement Agent that would permit an offering of Offering nor the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if bona fide nature of the Investor’s investment intent as expressed herein and the information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is outside the United Statestrue, it will comply with all applicable laws correct and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, complete in all cases at its own expense material respects.
5.2 The Investor (other than individuals) is an entity duly organized, validly existing and (c) in good standing under the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale laws of the Shares jurisdiction of its organization with full power and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ and contracting parties’ rights generally and except generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (iii) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as (iv) to the enforceability of any rights extent the indemnification and contribution provisions contained in this Annex I to indemnification or contribution that the Securities Purchase Agreement may be violative of limited by applicable federal or state securities laws or the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)such laws.
4.4 5.3 The Investor understands that nothing in this Agreement, is not purchasing the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Internet Securities and (includingii) the shares of Common Stock receivable upon conversion or exercise thereof, without limitationin each case, internet “blogs,” bulletin boardsfor its own account and not with a view towards, discussion groups and social networking sites) or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6 The Investor and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities and is not subscribing for as have been requested by the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 Investor. The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives receivedadvisors, as compensation for those offeringsif any, warrants have been afforded the opportunity to purchase shares ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s common stock, which may give Placement Agent as incentive right to sell rely on the Company’s representations and warranties contained herein. The Investor understands that its investment in the Securities to the Investorinvolves a high degree of risk.
4.13 5.7 The Investor is aware understands that a Managing Partner no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Placement Agent’s New YorkSecurities, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with nor have such authorities passed upon or endorsed the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with merits of the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealeroffering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the Securities set forth in Section 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on in the Signature Page and Securities Purchase Agreement for use in preparation of the Investor Questionnaire Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company in writing immediately of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on in Section 3 of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Securities has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Investor understands that the Securities purchased hereunder have to be held indefinitely unless there is an effective Registration Statement under the Securities Act with respect to the Securities or an exemption from registration available under the Securities Act and applicable state securities laws, and the Investor is able to bear the economic risk of an investment in the Securities.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities Securities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Securities without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantsif selling pursuant to the Registration Statement, without causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that, except as otherwise permitted under Section 7.5, the certificates evidencing the Securities will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Securities acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. a) The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies; (ii) the Investor has been given the opportunity to ask questions of, (b) and receive answers from, a qualified representative of the Company concerning the terms and conditions of this offering, the business and financial condition of the Company and other matters pertaining to this investment, and has answered all questions on been given the Signature Page opportunity to obtain such other information necessary to evaluate the merits and risks of an investment in the Shares as the Investor deems necessary, and the Investor Questionnaire has received, reviewed and considered the "RISK FACTORS" attached as Exhibit B hereto; (iii) the Investor is not relying on the Company with respect to any economic considerations involved in the investment in the Shares, and no representations or warranties, other than as set forth in Section 4 herein, have been made to the Investor by the Company or any officer, employee, agent or affiliate of the Company; (iv) the Investor is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and the answers thereto Investor has no present intention of selling, granting any participation in, or otherwise distributing the same; and (v) the Investor will not, directly or indirectly, sell, offer to sell, loan, grant any right to, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of)(collectively, a "disposition") any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder.
b) The Investor understands that the Shares are true "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and correct that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this regard, the Investor represents that it is familiar with SEC Rule 144 ("Rule 144"), as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. The Investor is prepared to hold the Shares for an indefinite period of time.
c) Without in any way limiting the representations set forth above, the Investor further agrees not to make any disposition of all or any portion of the Shares unless (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 such registration statement, or (ii) the Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances surrounding the proposed disposition, and, if reasonably requested by the Company, the Investor shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such Shares under the Securities Act. The Investor shall comply with the requirements of Section 7 in connection with any proposed disposition. In addition, the Investor shall not engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a disposition of the Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Common Stock of the Company, but such security shall not include the capital stock or debt of the Investor, its parent companies or their respective subsidiaries.
d) The certificates evidencing the Shares will bear the following legends:
(i) THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 PROMULGATED UNDER SUCH ACT."
(ii) Any legend required by the laws of the State of Delaware or Connecticut. The legend referred to in clause (a) above shall be removed by the Company from any certificate at such time as the holder of the Shares represented by the certificate delivers an opinion of counsel reasonably satisfactory to the Company to the effect that such legend is not required in order to establish compliance with any provisions of the Securities Act, or at such time as the holder of such Shares satisfies the requirements of Rule 144(k) under the Securities Act; provided, that Rule 144(k) as then in effect does not differ substantially from Rule 144(k) as in effect as of the date hereof of this Agreement; and will be true and correct as provided further, that the Company has received from the holder a written representation that such holder is not an affiliate of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representationbeen an affiliate during the preceding three (3) months, disclosure or use of any information in connection with the issue, placement, purchase and sale of such holder has beneficially owned the Shares represented by the certificate for a period of at least two (2) years, and Warrants, except such holder otherwise satisfies the requirements of Rule 144(k) as set forth or incorporated by reference then in the Base Prospectus, the Prospectus Supplement or any free writing prospectuseffect with respect to such Shares.
4.3 e) The Investor further represents and warrants to the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and the Amendment to Joint Development Agreement and to consummate the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Amendment to Joint Development Agreement, and (bii) upon the execution and delivery of this Agreement constitutes and the Amendment to Joint Development Agreement, each of this Agreement and the Amendment to Joint Development Agreement shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 f) The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (b) the Investor is acquiring the number of Preferred Shares set forth in Article IV of the attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (c) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (d) the Investor has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (e) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares; and (cf) the Investor has, in connection with its decision to purchase the number of Preferred Shares and Warrants set forth on in Article IV of the Signature Pageattached Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither the Placement Agent that would permit an offering of Offering nor the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale bona fide nature of the Shares Investor’s investment intent as expressed herein and Warrants, except as set forth or incorporated by reference the information provided in the Base Prospectus, the Prospectus Supplement or any free writing prospectusInvestor’s Investor Questionnaire.
4.3 5.2 The Investor has (other than individuals) is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, power, power and authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (a) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ and contracting parties’ rights generally and except generally, (b) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (c) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and (d) and except as to the enforceability of extent any rights to indemnification or and contribution that provisions contained in this Annex I may be violative of limited by applicable federal or state securities laws or the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)such laws.
4.4 5.3 The Investor understands that nothing in this Agreement, is not purchasing the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (a) acquiring the Internet Securities and (includingb) the shares of Common Stock receivable upon conversion thereof, without limitationin each case, internet “blogs,” bulletin boardsfor its own account and not with a view towards, discussion groups and social networking sites) or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6 The Investor and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities and is not subscribing for as have been requested by the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 Investor. The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives receivedadvisors, as compensation for those offeringsif any, warrants have been afforded the opportunity to purchase shares ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s common stock, which may give Placement Agent as incentive right to sell rely on the Company’s representations and warranties contained herein. The Investor understands that its investment in the Securities to the Investorinvolves a high degree of risk.
4.13 5.7 The Investor is aware understands that a Managing Partner no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Placement Agent’s New YorkSecurities, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with nor have such authorities passed upon or endorsed the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with merits of the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealeroffering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company as follows:
5.1 (i) The Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares Common Stock and Warrants, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Common Stock and Warrants, including without limitation, the Confidential Private Placement Memorandum dated _______ 2003, and all exhibits attached thereto and incorporated by reference therein (bthe “Memorandum”) has answered all questions and the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2002 delivered to the Investor; (ii) the Investor is acquiring the number of shares of Common Stock and Warrants set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of the shares of Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants, in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of the shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (iii) the Investor Questionnaire will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Common Stock, Warrants and shares of Common Stock issued upon exercise of the Warrants or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares shares of Common Stock and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor’s investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares Common Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the Securities Common Stock and Warrants, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Common Stock and WarrantsWarrants without complying with the provisions of this Agreement, including Section 7.2 hereof, provided that the Company complies with its obligations under Section 7.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Common Stock and Warrants will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability effectiveness of the Registration Statement, directly or indirectly, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants shall bear a restrictive legend to the effect that the Common Stock, Warrants and Common Stock issuable upon exercise of the Warrants have not been registered under the Securities Act of 1933, as amended and such securities may not be sold or state securities law, rule transferred in the absence of an effective registration statement or regulation)pursuant to an exemption from registration.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Common Stock and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares the Common Stock and Warrants. .
5.7 The Investor also understands that there is no established public trading market for shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants being offered in until the Offering, and that earlier of such time as the Company does not expect such has made a market to develop. In additionpublic announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an individual, the Company does Investor certifies that he or she is not intend nor to apply for listing of his or her knowledge has been designated, a “suspected terrorist” as defined in Executive Order 13224. If the Warrants on any securities exchange. The Investor understands that without an active marketis a corporation, trust, partnership, limited liability company or other organization, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior certifies that, to the public disclosure best of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringits knowledge, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legalbeen designated, accounting and other advisors) and has is not engaged in any purchases owned or sales of the securities of the Company (includingcontrolled by, without limitation, any Short Sales (a “suspected terrorist” as defined herein) involving the Company’s securities)in Executive Order 13224. The Investor covenants hereby acknowledges that it will not engage in any purchases or sales the Company seeks to comply with all applicable laws covering money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (a) none of the securities cash or property that the Investor will pay or will contribute to the Company ahs been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (b) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor’s control, shall cause the Company to be in violation of the Untied States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the Untied States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company (including Short Sales) prior if any of these representations ceases to be true and accurate regarding the time that the transactions contemplated by this Agreement are publicly disclosedInvestor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it will not use is discovered that any of the Securities acquired pursuant foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to this Agreement money laundering similar activities, the Company may undertake appropriate actions to cover any short position ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor’s investment in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in partCompany. The Investor has no agreement or arrangementfurther understands that the Company may release confidential information about the Investor and, formal or informalif applicable, with any person underlying beneficial owners, to sell or transfer all or any part proper authorities if the Company, in its sole discretion, determines that it is in the best interest of the Shares, Company in light of relevant rules and regulations under the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards laws set forth in Part B of the Investor Questionnaire attached hereto as Annex IIsubsection (b) above.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Rule 501 of Regulation D under the Securities Act and that the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Units; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Units set forth in Section 3 of the Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Units or any arrangement or understanding with any other persons regarding the distribution of such Units; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Units set forth on in Section 3 of the Signature PagePage to the Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company's officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Units, and fully understands that the Units are speculative investments, which involve a high degree of risk of loss of the Investor's entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption "Risk Factors" in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue issuance of the Securities Units, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Units, Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, except as set forth or incorporated by reference which are not readily marketable, is not excessive in view of the Investor's net worth and financial circumstances, and any purchase of the Units will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusUnits.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares or Warrant Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Units.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the Units to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor's representations made in this Agreement. The Investor understands that without the Units must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an active market, the liquidity of the Warrants will be limited.
4.5 exemption from such registration and qualification requirements is otherwise available. The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of acknowledges that information by the Company has no obligation to register or qualify the Units or underlying Shares or Warrant Shares for resale. The Investor acknowledges that the Company will refuse to register any transfer of Units, Shares or Warrant Shares that is not made in accordance with Section 13 the provisions of this Annex.
4.6 Since Regulation S, registered pursuant to the time at which the Placement Agent first contacted Securities Act or otherwise exempt from such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities)registration. The Investor covenants further acknowledges that if an exemption from registration or qualification is available, it will may be conditioned on various requirements including, but not engage in any purchases limited to, the time and manner of sale, the holding period for the Shares or sales Warrant Shares, and requirements relating to the Company which are outside of the securities of Investor's control, and which the Company (including Short Sales) prior is under no obligation and may not be able to the time that the transactions contemplated by this Agreement are publicly disclosedsatisfy. The Investor agrees that it will not use any has been independently advised as to the applicable holding period imposed in respect of the Securities acquired pursuant to this Agreement to cover any short position Shares by securities legislation in the Common Stock if doing so would be jurisdiction in violation which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares or Warrant Shares in such jurisdiction and it is aware of the risks and other characteristics of the Units and of the fact that the undersigned may not resell the Units, Shares or Warrant Shares except in accordance with applicable securities laws. legislation and regulatory policy.
5.9 A copy of the Company's annual report on Form 10-K, its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the SEC's website at ▇▇▇.▇▇▇.▇▇▇.
5.10 For purposes hereofof compliance with the Regulation S exemption for the offer and sale of the Units (defined in this Section 5.10 to include the underlying Shares and Warrant Shares) to non-U.S. Persons, “Short Sales” include, without limitation, all “short sales” if the Investor is not a "U.S. Person," as such term is defined in Rule 200 promulgated under Regulation SHO under 902(k) of ▇▇▇▇▇▇▇▇▇▇ ▇,▇ the Exchange Act, whether Investor represents and warrants that the Investor is a person or not against entity that is outside the boxUnited States, and all types further represents and warrants as follows:
(a) The Investor is not acting and purchasing (or proposes to purchase) the Units on behalf of direct any other persons, entities or accounts and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” is not acquiring the Units for the account or benefit of a U.S. Person. The Investor represents and warrants that the Investor is not a "U.S. Person" (as defined in Rule 16a-1(h902(k) under the Exchange Securities Act) and similar arrangements was located outside the United States at the time any offer to buy the Units was made and at the time the buy offer was originated by the undersigned.
(b) If the Investor is a legal entity, it has not been formed specifically for the purpose of investing in the Company.
(c) The Investor hereby represents that he, she or it has satisfied and fully observed the laws of the jurisdiction in which he, she or it is located or domiciled, in connection with the acquisition of the Units, including on a total return basis)(i) the legal requirements of the Investor's jurisdiction for the acquisition of the Units, (ii) any foreign exchange restrictions applicable to such acquisition, (iii) any governmental or other consents that may need to be obtained, and sales (iv) the income tax and other transactions through non-U.S. broker dealers tax consequences, if any, which may be relevant to the holding, redemption, sale, or foreign regulated brokerstransfer of the Units; and further, the Investor agrees to continue to comply with such laws as long as he, she or it shall hold the Units.
4.7 The Investor is acquiring (d) To the Shares and Warrants (including, upon the exercise knowledge of the WarrantsInvestor, without having made any independent investigation, neither the Company nor any person acting for the Company, has conducted any "directed selling efforts" in the United States as the term "directed selling efforts" is defined in Rule 902 of Regulation S, which, in general, means any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the marketing in the United States for any of the Units being offered. Such activity includes, without limitation, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view mailing of printed material to or intent of resale or distribution thereof, investors residing in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the SharesUnited States, the Warrants, or holding of promotional seminars in the Warrant SharesUnited States, and the Investor has no plans to enter into any such agreement placement of advertisements with radio or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment television stations broadcasting in the Securities and is able United States or in publications with a general circulation in the United States, which discuss the offering of the Units. To the knowledge of the Investor, the Units were not offered to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying onundersigned through, and did the undersigned is not become aware of the Offering through or as a result of, any form of general solicitation or general advertising includingadvertising, including without limitation, (i) any advertisement, article, notice, advertisement notice or other communication published in any newspaper, magazine or similar media or broadcast over televisiontelevision or radio, radio or the Internet and (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sitesii) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(e) The Investor will offer, sell or otherwise transfer the Units, only (A) pursuant to which a registration statement that has been declared effective under the Investor was invited bySecurities Act, (B) pursuant to offers and sales that occur outside the United States within the meaning of Regulation S in a transaction meeting the requirements of Rule 904 (or other applicable Rule) under the Securities Act, or (C) pursuant to another available exemption from the registration requirements of the Securities Act, subject to the Company's right prior to any solicitation offer, sale or transfer pursuant to clauses (B) or (C) to require the delivery of an opinion of counsel, certificates or other information reasonably satisfactory to the Company for the purpose of determining the availability of an exemption.
(f) The Investor will not engage in hedging transactions involving the Units unless such transactions are in compliance with the Securities Act.
(g) The Investor represents and warrants that the undersigned is not a subscription bycitizen of the United States and is not, and has no present intention of becoming, a resident of the United States (defined as being any natural person not previously known to physically present within the United States for at least 183 days in a 12-month consecutive period or any entity who maintained an office in the United States at any time during a 12-month consecutive period). The Investor in connection with investments in understands that the Company may rely upon the representations and warranty of this paragraph as a basis for an exemption from registration of the Units under the Securities Act of 1933, as amended, and the provisions of relevant state securities generallylaws.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 5.11 The Investor is aware that not a "disqualified organization." "Disqualified organization" means (i) the Placement Agent, for federal government of the services it is providing United States; (ii) any state or political subdivision of the United States; (iii) any foreign government; (iv) any international organization; (v) any agency or instrumentality of any of the organizations listed in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agentclauses (i), (1ii), (iii) or (iv) above; (vi) any other tax exempt organization, other than a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with '▇ cooperative described in Section 521 of the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with Code that is exempt from both income taxation and from taxation under the Massachusetts Securities Division in unrelated business taxable income provisions of the Code; or (vii) any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealerrural electrical or telephone cooperative.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Preferred Shares and Warrants set forth in Article IV of the attached Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Conversion Shares and Warrant Shares or until the Company is otherwise no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Preferred Shares and Warrants set forth on in Article IV of the Signature Pageattached Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents, the Securities Act Documents, and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither the Placement Agent that would permit an offering of Offering nor the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale bona fide nature of the Shares Investor’s investment intent as expressed herein and Warrants, except as set forth or incorporated by reference the information provided in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 Investor’s Investor Questionnaire. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
5.2. The Investor (other than individuals) is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, power, power and authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ and contracting parties’ rights generally and except generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies, (iii) as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as (iv) to the enforceability of any rights to extent the indemnification or and contribution that provisions contained in this Agreement may be violative of limited by applicable federal or state securities laws or the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)such laws.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice5.3. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for not purchasing the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or the Internet (presented at any seminar or any other general solicitation or general advertisement, including, without limitationlimitation any Securities Act Document.
5.4. The Investor is (i) acquiring the Securities and (ii) the shares of Common Stock or Preferred Stock, internet “blogs,” bulletin boardsas applicable, discussion groups receivable upon conversion or exercise thereof, in each case, for its own account and social networking sites) not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of the Securities Act; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5. The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6. The Investor and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities as have been requested by the Investor. The Investor and is not subscribing for its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment in the Securities and did not become aware involves a high degree of risk.
5.7. The Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Offering through Securities or as a result the fairness or suitability of any seminar the investment in the Securities, nor have such authorities passed upon or meeting to which endorsed the merits of the offering of the Securities.
5.8. The Investor was invited by, or any solicitation of a subscription by, a person not previously known shall deliver to the Corporation at the Closing a fully completed Investor in connection with investments in securities generally.
4.10 Questionnaire. The Investor meets shall timely provide upon request by the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, Corporation any additional information or updated information with respect to subscriptions made the Investor’s completed Investor Questionnaire within five (5) business days of such request by the Corporation in this Offering through preparation for the Placement Agent, (1) a cash compensation equal to 9% filing of the gross proceeds received by the Company from such subscribers; and Registration Statement (2as defined below) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealerSection 9.1.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. (a) The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsStock, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Stock; (bii) the Investor is acquiring the number of shares of Stock set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such shares of Stock or any arrangement or understanding with any other persons regarding the distribution of such shares of Stock; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the shares of Stock except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation for the Investor Questionnaire Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its shares of Stock or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants shares of Stock set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package representations and warranties of the documents incorporated by reference thereinCompany contained herein.
4.2 (ab) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United Untied States by the Company or the Placement Agent that would permit an offering of the Shares and Warrantsshares of Stock, or possession or distribution of offering materials in connection with the issue of the Securities shares of Stock, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities shares of Stock or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except shares of Stock other than as set forth or incorporated by reference contained in the Base ProspectusPlacement Memorandum.
(c) The Investor hereby covenants with the Company not to make any sale of the shares of Stock without complying with the provisions of this agreement, including Section 7.2 hereof, and without effectively causing the Prospectus Supplement prospectus delivery requirement under the Securities Act to be satisfied. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the prospectus forming a part of the Registration Statement until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the Commission or any free writing until the Company has amended or supplemented such prospectus.
4.3 (d) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
(e) Investor will not, prior to the enforceability effectiveness of the Registration Sstatement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Sstock of the Company, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal or state securities law, rule or regulation)significant part of its value from the Common stock of the Company.
4.4 (f) The Investor understands that nothing in the Placement Memorandum, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedStock.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company as follows:
(i) The Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares Common Stock and Warrants, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Common Stock and Warrants, including without limitation, the Confidential Private Placement Memorandum dated _______ 2003, and all exhibits attached thereto and incorporated by reference therein (bthe "Memorandum") has answered all questions and the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 2002 delivered to the Investor; (ii) the Investor is acquiring the number of shares of Common Stock and Warrants set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of the shares of Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants, in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of the shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (iii) the Investor Questionnaire will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Common Stock, Warrants and shares of Common Stock issued upon exercise of the Warrants or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares shares of Common Stock and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor's compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares Common Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the Securities Common Stock and Warrants, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Common Stock and WarrantsWarrants without complying with the provisions of this Agreement, including Section 7.2 hereof, provided that the Company complies with its obligations under Section 7.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Common Stock and Warrants will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability effectiveness of the Registration Statement, directly or indirectly, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Common Stock, Warrants and shares of Common Stock issuable upon exercise of the Warrants shall bear a restrictive legend to the effect that the Common Stock, Warrants and Common Stock issuable upon exercise of the Warrants have not been registered under the Securities Act of 1933, as amended and such securities may not be sold or state securities law, rule transferred in the absence of an effective registration statement or regulation)pursuant to an exemption from registration.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Common Stock and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares the Common Stock and Warrants. .
5.7 The Investor also understands that there is no established public trading market for shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants being offered in until the Offering, and that earlier of such time as the Company does not expect such has made a market to develop. In additionpublic announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an individual, the Company does Investor certifies that he or she is not intend nor to apply for listing of his or her knowledge has been designated, a "suspected terrorist" as defined in Executive Order 13224. If the Warrants on any securities exchange. The Investor understands that without an active marketis a corporation, trust, partnership, limited liability company or other organization, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior certifies that, to the public disclosure best of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringits knowledge, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legalbeen designated, accounting and other advisors) and has is not engaged in any purchases owned or sales of the securities of the Company (includingcontrolled by, without limitation, any Short Sales (a "suspected terrorist" as defined herein) involving the Company’s securities)in Executive Order 13224. The Investor covenants hereby acknowledges that it will not engage in any purchases or sales the Company seeks to comply with all applicable laws covering money laundering and related activities. In furtherance of those efforts, the Investor hereby represents, warrants and agrees that: (a) none of the securities cash or property that the Investor will pay or will contribute to the Company ahs been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (b) no contribution or payment by the Investor to the Company, to the extent that they are within the Investor's control, shall cause the Company to be in violation of the Untied States Bank Secrecy Act, the United States Money Laundering Control Act of 1986 or the Untied States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. The Investor shall promptly notify the Company (including Short Sales) prior if any of these representations ceases to be true and accurate regarding the time that the transactions contemplated by this Agreement are publicly disclosedInvestor. The Investor agrees to provide the Company any additional information regarding the Investor that the Company deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. The Investor understands and agrees that if at any time it will not use is discovered that any of the Securities acquired pursuant foregoing representations are incorrect, or if otherwise required by applicable law or regulation related to this Agreement money laundering similar activities, the Company may undertake appropriate actions to cover any short position ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of the Investor's investment in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in partCompany. The Investor has no agreement or arrangementfurther understands that the Company may release confidential information about the Investor and, formal or informalif applicable, with any person underlying beneficial owners, to sell or transfer all or any part proper authorities if the Company, in its sole discretion, determines that it is in the best interest of the Shares, Company in light of relevant rules and regulations under the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards laws set forth in Part B of the Investor Questionnaire attached hereto as Annex IIsubsection (b) above.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company as follows:
(i) The Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities, including without limitation, the Confidential Private Placement Memorandum dated November 18, 2004, and all exhibits attached thereto and incorporated by reference therein (bthe “Memorandum”), including the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003; (ii) has answered all questions the Investor is acquiring the number of Shares and Warrants set forth on the Signature Page cover page hereto for its own account for investment only and with no present intention of distributing any of such Securities in violation of the Securities Act nor has the Investor entered into any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has filled in all requested information on the cover page hereto and the Investor Questionnaire for use, in part, in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagecover page hereto, has received and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that the Securities and the Warrant Shares are “restricted securities” and that neither its acquisition of the Securities or the Warrant Shares has been registered under the Securities Act or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements and covenants of the Investor set forth in this Agreement and the bona fide nature of the Investor’s investment intent as expressed herein. No person (including the Placement Agent) is authorized by reference thereinthe Company to provide any representation that is inconsistent with or in addition to those contained herein or in the SEC Disclosures, and the Investor acknowledges that it has not received or relied on any such representations.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities Securities, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representationsale, disclosure transfer or use other disposition of any information in connection the Securities or the Warrant Shares without complying with the issueprovisions of this Agreement, placementincluding Section 7.2 hereof, purchase provided that the Company complies with its obligations under Section 7.1, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and sale of the Investor acknowledges that the certificates evidencing the Shares and Warrantsany Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and the Warrant and to consummate the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and the Warrant and (bii) this Agreement constitutes a and the Warrant constitute the valid and binding obligation obligations of the Investor enforceable against the Investor in accordance with its their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability effectiveness of the Registration Statement, directly or indirectly, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Common Stock of the Company in violation of the Securities Act. The Investor has not, during the 15 days prior to the date of this Agreement, directly or indirectly, traded in the Common Stock or established any hedge or other position in the Common Stock that is outstanding on the Closing Date and that is designed to or could reasonably be expected to lead to or result in a Disposition by the Investor or any other person or entity. For purposes of this Section 5.5, hedging or other position would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal significant part of its value from the Common Stock of the Company. The Investor acknowledges that the Warrant and the certificates representing the Shares and the Warrant Shares shall bear a restrictive legend to the effect that the such Securities or state securities lawWarrant Shares, rule as the case may be, have not been registered under the Securities Act of 1933, as amended and such Securities or regulation)Warrant Shares, as the case may be, may not be sold or transferred in the absence of an effective registration statement or pursuant to an available exemption from registration.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. Securities.
5.7 The Investor also understands that there is no established public trading market for shall hold in strict confidence all information concerning this Agreement and the Warrants being offered in Offering until the Offering, and that earlier of such time as the Company does not expect such has made a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to announcement concerning this Agreement or the transactions contemplated herebyOffering.
4.12 5.8 The Investor acknowledges that the Placement Agent has acted solely as a placement agent for the Company in previous offerings of its debt and equity securitiesconnection with the Offering, and that the Placement Agent and its registered representatives receivedhas made no representation or warranty whatsoever with respect to the accuracy or completeness of information, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities data or other related disclosure material that has been provided to the Investor.
4.13 . The Investor is aware further acknowledges that a Managing Partner in making its decision to enter into this Agreement and purchase the Securities, it has relied on its own examination of the Company and the terms of, and consequences of holding, the Securities. The Investor further acknowledges that the provisions of this Section 5.8 are for the benefit of, and may be enforced by, the Placement Agent’s New York.
5.9 The Investor acknowledges that it has independently evaluated the merits of the transactions contemplated by this Agreement, NY officethat it has independently determined to enter into the transactions contemplated hereby, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇that it is not relying on any advice from or evaluation by any Other Investor, entered into a final settlement and that it is not acting in concert with any Other Investor in making its purchase of the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacityhereunder. The settlement resolved allegations Investor and, to its knowledge, the Company acknowledge that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed the Investors have not taken any actions that would deem the Investors to adequately supervise employees at be members of a prior broker-dealer“group” for purposes of Section 13(d) of the Exchange Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (Genaissance Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) (A) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and the Warrants, including investments in securities issued by the Company and investments in comparable companies, and subject to the accuracy of the Company’s representations and warranties, has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and the Warrants and (bB) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and the Warrants and to obtain any additional information relating to the financial condition and business of the Company and the Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares and the Warrants; (ii) the Investor is acquiring the number of Shares and the Warrants to purchase the number of Warrant Shares, each as set forth in Section 3 of the Agreement in the ordinary course of its business and for its own account and with no present intention of distributing any of such Shares, Warrants or Warrant Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrants or Warrant Shares (other than pursuant to the Registration Statement or in compliance with applicable laws); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares and the Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and Investor Questionnaire, a form of which is attached hereto as Exhibit B (the “Investor Questionnaire Questionnaire”) and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date and the Filing Date; (cv) upon request of the Company, the Investor will notify the Company of any change in any of the information provided to the Company pursuant to Section 7.1(a) until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrants to purchase the number of Warrant Shares, each as set forth on in Section 3 of the Signature PageAgreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrants has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, Warrants or Warrant Shares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, Warrants or Warrant Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities the Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), except as set forth or incorporated by reference and the Investor acknowledges that, subject to removal in accordance with the Base Prospectusterms hereof, the Prospectus Supplement or any free writing prospectusWarrants and certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith.
4.3 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) assuming the valid execution hereof by the Company, this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any sale of Common Stock (including without limitation any short sale, pledge, transfer or establishment of an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act) during the 90 days immediately preceding the date of this Agreement (other than "program trades"). Investor will not use any of the restricted Shares acquired pursuant to this Agreement, or the Warrant Shares acquired pursuant to the Warrants, to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares, Warrants and Warrant Shares.
5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Warrant or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and the Warrants. .
5.7 The Company acknowledges and agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior other than those specifically set forth in this Agreement.
5.8 The Investor acknowledges the following disclosure, which is set forth herein as required pursuant to Section 25102(a) of the California Corporate Securities Law of 1968 (provided that, subject to the public disclosure accuracy of that information by the Investors’ representations and warranties to the Company, the Company in accordance with Section 13 of this Annex.
4.6 Since represents that the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales sale of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). Shares is so exempt): 5.9 The Investor covenants that it will not engage in any purchases or sales of the securities of Investor shall deliver to the Company (including Short Sales) the completed Investor Questionnaire prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokersSecond Closing.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (NxStage Medical, Inc.)
Representations, Warranties and Covenants of the Investor. 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and that: (i) the Placement Agent that:
4.1 The Investor (a) is an "accredited investor" as defined in Regulation D under the Securities Act, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like similar to that involved in the purchase of the Shares Securities, has had the opportunity to ask questions and Warrantsreceive answers concerning the terms and conditions of the Offering, including investments and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (ii) the Investor understands that the Securities are "restricted securities" and have not been registered under the Securities Act and is acquiring the Securities set forth in paragraph 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only, has no present intention of distributing any of such Securities (or any Warrant Shares) and has no arrangement or understanding with any other persons regarding the distribution of such Securities (or any Warrant Shares) (provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities (or any Warrant Shares) for any minimum or other specific term and reserves the right to dispose of the Securities (and any Warrant Shares) at any time in accordance with or pursuant to an effective registration statement or an exemption under the Securities Act); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities (or any Warrant Shares) except in compliance with the Securities Act, applicable state securities issued by laws and the Company respective rules and investments in comparable companies, regulations promulgated thereunder; (biv) the Investor has answered all questions on in paragraph 4 of the Signature Page Securities Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit C for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on in paragraph 3 of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package representations and warranties of the Company contained herein and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference contained in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority Private Placement Memorandum and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchangeSEC Reports. The Investor understands that without an active market, the liquidity issuance of the Warrants will be limited.
4.5 The Investor will maintain Securities and the confidentiality of all information acquired as a result of the transactions contemplated hereby prior Warrant Shares to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of been registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) registered or qualified under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereofany state securities law, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stockreliance on specific exemptions therefrom, which exemptions may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreeddepend upon, among other things, never the representations made by the Investor in this Agreement. No person (including without limitation any of the Placement Agents) is authorized by the Company to seek provide any representation that is inconsistent with or in addition to register with those contained herein, in the Massachusetts Securities Division Private Placement Memorandum or in the SEC Reports, and the Investor acknowledges that it has not received or relied on any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealersuch representations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Entertainment Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto, the Registration Statement Questionnaire attached hereto as Exhibit B, and the Investor Questionnaire attached hereto as Exhibit C, and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Company Information provided to the Investor by the Company in contemplation of this offering and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act, or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusShares.
4.3 5.3 The Investor has full right, power, authority and capacity hereby covenants with the Company not to enter into this Agreement and to consummate make any sale of the transactions contemplated hereby and has taken all necessary action to authorize Shares without complying with the execution, delivery and performance provisions of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the OfferingSection 7.2 hereof, and that without effectively causing the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of prospectus delivery requirement under the Securities acquired pursuant Act to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Sharessatisfied, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware acknowledges that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of certificates evidencing the Shares issued to such subscribers will be imprinted with a legend that prohibits their transfer except in the Offeringaccordance therewith. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of there may occasionally be times when the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.based on the
Appears in 1 contract
Sources: Stock Purchase Agreement (Incyte Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions on the Signature Page Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PageStock Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has been provided with a copy of the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Securities, and fully understands that the Securities are speculative investments, which involve a high degree of risk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated in Section 6.2(c). The undersigned is aware that, in such event, the Securities will not be subject to ready liquidation, and that any Securities purchased by reference the undersigned would have to be held during such suspension. The overall commitment of the Investor to investments, which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Securities will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusSecurities.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The 5.6 Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and signature page hereto for use in preparation of the Investor Questionnaire Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Placement Memorandum and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached as Exhibit D to the Placement Memorandum, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except other than as set forth or incorporated by reference contained in the Base Placement Memorandum.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement pursuant to Section 7.2 hereof until such time as an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or until the Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not, prior to the enforceability effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock of the Company, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal or state securities law, rule or regulation)significant part of its value from the Common Stock of the Company.
4.4 5.6 The Investor understands that nothing in the Placement Memorandum, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the Shares set forth in Section 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares (other than pursuant to the Registration Statement) or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date and the Filing Date; (cv) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature Page, has received and is relying Securities Purchase Agreement relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares for any period of time.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and generally, except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Between the time the Investor learned about the Offering and the public announcement of the Offering, the Investor has not engaged in any short sales or similar transactions with respect to the enforceability of Common Stock, nor has the Investor, directly or indirectly, caused any rights person to indemnification engage in any short sales or contribution that may be violative similar transactions with respect to the Common Stock. Without limiting the foregoing, Investor will not use any of the public policy underlying Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws and will otherwise comply with federal or state securities law, rule or regulation)laws in the holding and sale of the Shares.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. (a) The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act of 1933, as amended (the "Securities Act") and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsStock, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Stock; (bii) the Investor is acquiring the Stock in the ordinary course of its business and for its own account for investment only and with no present intention of distributing the Stock or any arrangement or understanding with any other persons regarding the distribution of the Stock; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the shares of Stock except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page signature page hereto for use in preparation for the
(b) The Investor acknowledges, represents and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrantsshares of Stock, or possession or distribution of offering materials in connection with the issue of the Securities shares of Stock, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . The Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities shares of Stock or has in its possession or distributes any offering material, in all cases at its own expense and expense.
(c) The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares shares of Stock without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantswithout effectively causing the prospectus delivery requirement under the Securities Act to be satisfied. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that it must suspend the use of the prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Prospectus, the Prospectus Supplement Company has amended or any free writing supplemented such prospectus.
4.3 (d) The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreement of the Investor herein may be legally unenforceable.
(e) Investor will not, prior to the enforceability of any rights to indemnification or contribution that may be violative effectiveness of the public policy underlying Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any lawright with respect to (collectively, rule a "Disposition"), the Common Stock of the Company, nor will Investor engage in any hedging or regulation other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity. Such prohibited hedging or
(including any federal or state securities law, rule or regulation).
4.4 f) The Investor understands that nothing in the 1934 Act Filings, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its the purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedStock.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent (as to itself), that:
4.1 4.1. The Investor (a) is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D, promulgated under the Act, (b) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (bc) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (cd) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 4.4. The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 4.5. Since the time at date on which the Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h16a−1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Premier Power Renewable Energy, Inc.)
Representations, Warranties and Covenants of the Investor. 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor understands that the Shares are "restricted securities" and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated offer and experienced in making, sale thereof have not been registered under the Securities Act and is qualified acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only, has no present intention of distributing any of such Shares and has no arrangement or understanding with any other persons regarding the distribution of such Shares (this representation and warranty not limiting the Investor's right to make decisions sell Shares pursuant to the Registration Statement or otherwise, or other than with respect toto any claim arising out of a breach of this representation and warranty, investments in securities presenting an investment decision like that involved in the Investor's right to indemnification under Section 6.3); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and Warrants, including investments in securities issued by the Company respective rules and investments in comparable companies, regulations promulgated thereunder; (biv) the Investor has answered all questions on the Signature Page signature page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package SEC Reports, the Company's earnings press release dated August 14, 2001, and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. Investor understands that the Placement Agent that would permit an offering issuance of the Shares and Warrantsto the Investor has not been registered under the Securities Act, or possession registered or distribution of offering materials qualified under any state securities law in connection with reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the issue bona fide nature of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Investor's investment intent as expressed herein. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans person is authorized to enter into provide any such agreement representation which is inconsistent or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters addition to be capable of evaluating the merits and risks of an investment those herein or in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the OfferingSEC Reports. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent it has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investornot received or relied on any such representations.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Act Teleconferencing Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the number of the Shares and the number of the Warrants, in each case, set forth on the Investor’s signature page to this Agreement, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and the Warrants; (bii) the Investor is acquiring the Shares and the Warrants in the ordinary course of its business and for its own account and with no present intention of distributing any of the Shares or the Warrant Shares (other than pursuant to the Registration Statement) or any arrangement or understanding with any other persons regarding the distribution of the Shares or the Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares or the Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire attached hereto for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date and the Filing Date; (cv) the Investor will notify the Company immediately of any change in any of such information until such time as such Investor has sold all of the Shares and the Warrant Shares owned by it or until the Company is no longer required to keep the Registration Statement effective (other than changes in the number of Shares or Warrant Shares); and (vi) the Investor has, in connection with its decision to purchase the number of the Shares and the Warrants set forth on the Signature Page, has received and is relying relied only upon the Disclosure Package SEC Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrants has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinthe Investor to hold the Shares, the Warrants or the Warrant Shares for any period of time.
4.2 (a) No 5.2 The Investor acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, the Warrants or the Warrant Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities Shares, the Warrants or the Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Any Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities the Shares, the Warrants or the Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, the Warrants and the Warrant Shares without complying with the provisions of the Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery (including deemed delivery) of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and each Investor acknowledges that the certificates evidencing the Shares, the Warrants and the Warrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this the Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this the Agreement, and (bii) this the Agreement constitutes a valid and binding obligation of the Investor enforceable against the such Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and generally, except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Since the time the Investor was first contacted by the Company or any other person regarding the transactions contemplated hereby, neither such Investor nor any Affiliate of such Investor which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Investor’s investments or trading or information concerning such Investor’s investments, including in respect of the Shares and Warrants, or (z) is subject to such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to effect any short sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) with respect to the enforceability Common Stock, borrowed or pre borrowed any shares of Common Stock, granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any security that includes, relates to or derived any significant part of its value from the Common Stock or otherwise sought to hedge its position in the Company’s securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the public disclosure of the transactions contemplated by this Agreement or (iii) the Required Effective Date, such Investor shall not, and shall cause its Trading Affiliates not to, (A) engage, directly or indirectly, in a Prohibited Transaction, or (B) effect any sale, assignment, pledge, hypothecation, put, call, transfer or other disposition of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)Company securities.
4.4 5.6 The Investor understands that nothing in this Agreementthe SEC Documents, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrants or the issuance of the Warrant Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Advanced Life Sciences Holdings, Inc.)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants (as of the date hereof) to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities Units presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) unless otherwise indicated through checking “None of the Above” at Item 10 on Exhibit A, is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended, (c) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (cd) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and the representations, warranties, covenants and agreements of the Company contained in the Placement Agency Agreement.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not nor have they made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement or any free writing prospectusFinal Prospectus.
4.3 (a) The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legalInvestor’s execution, tax delivery and investment advisors performance of this Agreement and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result consummation by it of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance do not and will not (i) conflict with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed or violate any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales provision of the securities Investor’s certificate or articles of the Company incorporation, bylaws or other organizational or charter documents, or (including, without limitation, any Short Sales (as defined hereinii) involving the Company’s securities). The Investor covenants that it will not engage conflict with or result in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in a violation of applicable securities laws. For purposes hereofany law, “Short Sales” includerule, without limitationregulation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Actorder, whether or not against the boxjudgment, and all types of direct and indirect stock pledgesinjunction, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement decree or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result restriction of any seminar court or meeting governmental authority to which the Investor was invited byis subject (including federal and state securities laws and regulations), or by which any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B property or asset of the Investor Questionnaire attached hereto as Annex IIis bound or affected.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Common Shares and Warrants set forth in Paragraph III of this Agreement in the ordinary course of his business and for his own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cv) the Investor has, in connection with its his decision to purchase the number of Common Shares and Warrants set forth on the Signature Pagein Paragraph III of this Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither this Offering nor the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if bona fide nature of the Investor’s investment intent as expressed herein and the information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is outside the United Statestrue, it will comply with all applicable laws correct and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, complete in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusmaterial respects.
4.3 5.2 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor him in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties’ rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any limited by applicable federal or state securities law, rule or regulation)laws.
4.4 5.3 The Investor understands that nothing in this Agreement, is not purchasing the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is acquiring the Internet (includingCommon Shares and Warrants, without limitationand the Warrant shares receivable upon exercise thereof, internet “blogs,” bulletin boardsin each case, discussion groups for his own account and social networking sites) not with a view towards, or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of business.
5.5 The Investor understands that the Securities are being offered and sold to him in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6 The Investor and his advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities and is not subscribing for as have been requested by the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 Investor. The Investor meets and his advisors, if any, have been afforded the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect opportunity to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or his advisors, if any, or his representatives shall modify, amend or affect the Investor’s common stock, which may give Placement Agent as incentive right to sell rely on the Company’s representations and warranties contained herein. The Investor understands that his investment in the Securities to the Investorinvolves a high degree of risk.
4.13 5.7 The Investor is aware understands that a Managing Partner no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Placement Agent’s New YorkSecurities, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with nor have such authorities passed upon or endorsed the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with merits of the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealeroffering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) (A) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and Warrantsthe Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and the Warrant and (bB) the Company has made available to the Investor, prior to the date hereof, the opportunity to ask questions of and receive complete and correct answers from representatives of the Company concerning the terms and conditions of the Shares and the Warrant and to obtain any additional information relating to the financial condition and business of the Company (provided that any investigation conducted by the Investor shall not affect its right to rely on the representations and warranties of the Company contained herein) and the Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of the investment in the Shares and the Warrant; (ii) the Investor is acquiring the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account and with no present intention of distributing any of such Shares, Warrant or Warrant Shares (other than pursuant to the Registration Statement or any exemption from the registration requirements of the Securities Act) or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares and the Warrant except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete in all material respects as of the date hereof and will be true true, correct and correct complete as of the Closing Date and the Filing Date; (cv) the Investor will notify the Company of any change in any of such information until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants the Warrant to purchase the number of Warrant Shares, each as set forth on in Section 3 of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents, the information provided to it pursuant to clause (i)(B) of this Section 5.1 and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, Warrant or Warrant Shares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, Warrant or Warrant Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities the Shares, Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and, if applicable, without complying with any prospectus delivery requirement then applicable to it, and Warrantsthe Investor acknowledges that the Warrant and certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, except as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Neither the Investor nor any person acting on its behalf or at its direction has engaged in any purchase or sale of Common Stock (including without limitation any short sale), pledge, transfer, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act) during the 5 trading days immediately preceding the date of this Agreement. Investor will not use any of the restricted Shares acquired pursuant to this Agreement, or the Warrant Shares acquired pursuant to the enforceability of Warrant, to cover any rights to indemnification or contribution that may be violative short position in the Common Stock of the public policy underlying any lawCompany if doing so would be in violation of applicable securities laws and otherwise will comply with federal securities laws in the holding and sale of the Shares, rule or regulation (including any federal or state securities law, rule or regulation)Warrant and Warrant Shares.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Warrant or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Warrant.
5.7 The Company acknowledges and agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards those specifically set forth in Part B Sections 4 and 5 of this Agreement, Sections 5 and 16(a) of Annex 1 of this Agreement, or in the Investor Questionnaire attached hereto as Annex IIQuestionnaire.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an investment decision to purchase the Securities; (bii) has answered all questions on the Signature Page Investor is acquiring the Securities as set forth in this Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the Investor Questionnaire respective rules and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date regulations promulgated thereunder; and (civ) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities as set forth on the Signature Pagein this Agreement, has received and is relying relied only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States filed by the Company or under the Placement Agent that would permit an offering Securities Exchange Act of 1934, as amended, since January 1, 2011 and has had the opportunity to consult with management regarding the disclosures in the foregoing documents prior to making its investment decision and the representations and warranties of the Shares and Warrants, or possession or distribution of offering materials in connection with Company contained herein. The Investor understands that neither the issue Offering nor the acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if bona fide nature of the Investor’s investment intent as expressed herein.
5.2. The Investor is outside an entity duly organized, validly existing and in good standing under the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares jurisdiction of its organization with full power and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action the other Transaction Documents and otherwise to authorize the carry out its obligations hereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement and any of the Transaction Documents to be performed by the Investor have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement and any of the Transaction Documents have been duly executed by the Investor, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against when delivered by the Investor in accordance with its the terms hereof, will constitute the valid and legally binding obligation of the Investor, enforceable against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice5.3. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for not purchasing the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or the Internet (presented at any seminar or any other general solicitation or general advertisement, including, without limitationlimitation any document filed under the Securities Act of 1933, internet as amended (“blogs,” bulletin boardsSecurities Act”).
5.4. The Investor is acquiring the Securities for its own account and not with a view towards, discussion groups and social networking sites) or for resale in connection with with, the Offering and public sale or distribution thereof in violation of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generallyAct.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Igi Laboratories, Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and Warrantsthe Warrant, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares and the Warrant; (bii) the Investor is acquiring the Warrant to purchase the number of Warrant Shares and the number of Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares, Warrant or Warrant Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares, Warrant or Warrant Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares, Warrant or Warrant Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and and, unless otherwise disclosed to the Company in writing prior to the Closing Date, will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information which is required to be disclosed in the Registration Statement until such time as the Investor has sold all of its Shares and Warrant Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants the Warrant to purchase the number of Warrant Shares, each as set forth on in Section 3 of the Signature PageStock and Warrant Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and the Warrant has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by reference thereinsuch Investor to hold the Shares, Warrant or Warrant Shares for any period of time. The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares, Warrant or Warrant Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares, Warrant or Warrant Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement), and the Investor acknowledges that the certificates evidencing the Shares and WarrantsWarrant Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, except as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Between the time the Investor learned about the Offering and the public announcement of the Offering, the Investor has not engaged in any short sales or similar transactions with respect to the enforceability of Common Stock, nor has the Investor, directly or indirectly, caused any rights person to indemnification engage in any short sales or contribution that may be violative similar transactions with respect to the Common Stock. Without limiting the foregoing, the Investor will not use any of the public policy underlying Shares or the Warrant acquired pursuant to this Agreement, or the Warrant Shares acquired pursuant to the Warrant, to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Warrant.
5.7 The Company acknowledges and agrees that Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market make or has not made any representations or warranties with respect to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards those specifically set forth in Part B Sections 5 and 16(a) of this Agreement, or in the Investor Questionnaire attached hereto as Annex IIQuestionnaire.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent Agent, that:
4.1 The Investor (a) is an accredited investor as such term is defined under federal securities laws, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is resident outside the United StatesStates and Canada, then it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense expense, and the Investor acknowledges and certifies that:
(ci) it is resident in the jurisdiction set out on the Signature Page of this Agreement;
(ii) no securities commission or similar regulatory authority has reviewed or passed on the merits of the Securities;
(iii) there is no government or other insurance covering the Securities;
(iv) there are risks associated with the purchase of the Securities;
(v) there are restrictions on the Investor’s ability to resell the Securities in Canada and it is the responsibility of the Investor to find out what those restrictions are and to comply with them before selling the Securities; and
(vi) the Placement Company has advised the Investor that the Company is relying on an exemption from the requirements to provide the Investor with a prospectus and to sell securities through a person registered to sell securities under the Securities Act (British Columbia) and, as a consequence of acquiring securities pursuant to this exemption, certain protections, rights and remedies provided by the Securities Act (British Columbia), including statutory rights of rescission or damages, will not be available to the Investor; and
(b) the Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusIssuer Free Writing Prospectus.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of violate the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the Placement any Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of in the securities of the Company (including Short Sales) or disclose any information about the Offering (other than to its advisors that are under a legal obligation of confidentiality) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Avino Silver & Gold Mines LTD)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and that: (i) the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities Securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Securities set forth on the Signature Page hereto in the ordinary course of its business and for its own account; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Date; (cv) the Investor, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on the Signature Page, has received and is relying only upon the Disclosure Package and Prospectus, the documents incorporated by reference thereintherein and the representations and warranties of the Company contained herein; and (vi) the Investor, after giving effect to the transactions contemplated hereby, will not, either individually or with a group (as defined in Section 13(d)(3) of the Exchange Act), be the beneficial owner of 15% or more of the Company’s outstanding Common Stock. For purposes of this Section 5.1, beneficial ownership shall be determined pursuant to Rule 13d-3 under the Exchange Act.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsSecurities, or possession or distribution of offering materials in connection with the issue of the Securities Securities, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is not authorized to make and has not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusSecurities.
4.3 5.3 The Investor has full right, power, authority represents and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreementwarrants to, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In additioncovenants with, the Company does not intend to apply for listing that, since the date on which any of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which or the Placement Agent first contacted such Investor about the Offeringpotential sale of the Securities, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed, which disclosure shall occur on the business day of, or immediately following, the Closing Date of this Offering. The Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 5.4 The Investor is acquiring the Shares further represents and Warrants (includingwarrants to, upon the exercise of the Warrantsand covenants with, the Warrant SharesCompany that (i) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans full right, power, authority and capacity to enter into any this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such agreement enforceability is considered in a proceeding in equity or arrangementat law) and except as the indemnification agreements of the Investor herein may be legally unenforceable.
4.8 5.5 The Investor has sufficient knowledge and experience understands that nothing in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, this Agreement or any solicitation of a subscription by, a person not previously known other materials presented to the Investor in connection with investments in securities generally.
4.10 the purchase and sale of the Securities constitutes legal, tax or investment advice. The Investor meets the suitability standards set forth has consulted such legal, tax and investment advisors as it, in Part B its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Investor Questionnaire attached hereto as Annex IISecurities.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Palatin Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement (as defined in Section 7.1(c) hereof) and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package representations and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by warranties of the Company or the Placement Agent contained herein. Investor understands that would permit an offering its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein. Investor has completed or caused to be completed and Warrantsdelivered to the Company the Investor Questionnaire(s) attached hereto, or possession or distribution of offering materials which questionnaire is true and correct in connection all material respects.
5.2 The Investor hereby covenants with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including the provisions of Section 7.2 hereof, and Warrantswithout effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus (as defined in Section 7.1(c) hereof) forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.3 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate perform the transactions to be performed by the Investor contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) assuming the accuracy of the Company’s representations in Section 4.3, this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investor herein may be violative legally unenforceable.
5.4 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in Company Common Stock if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.5 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares, (b) the Investor has answered all questions on the Signature Page and Exhibit A attached hereto for use in preparation of the Investor Questionnaire Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying relied only upon any or all of the Disclosure Package following: the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission, any Time of Sale Information (as defined in the Placement Agreement) provided to the Investor and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein.
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the any Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the expense. The Placement Agent is Agents are not authorized to make and has have not made any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsShares, except as set forth or incorporated by reference in the Base Registration Statement, the Basic Prospectus, the Prospectus Supplement or any free writing prospectusthe Time of Sale Information (as defined in the Placement Agreement).
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain represents, warrants and agrees that, since the confidentiality earlier to occur of all information acquired as a result of (i) the transactions contemplated hereby date on which the Placement Agents first contacted the Investor about the Offering and (ii) the date that is the tenth (10th) trading day prior to the public disclosure of that information by the Company in accordance with Section 13 date of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the OfferingAgreement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales short selling of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in , or established or increased any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short salesput equivalent position” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h16(a)-1(h) under the Securities Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise Act of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, 1934 with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investorsecurities.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. The Investor acknowledgesacknowledges and, represents and warrants to, and agrees with, the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated The Investor acknowledges its understanding and experienced agreement that the Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being offered in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in a transaction not involving any public offering within the purchase Unites States within the meaning of the Securities Act, that the Shares and Warrantshave not been registered under the Securities Act or the securities laws of any jurisdiction and, including investments in securities issued by unless so registered, may not be sold except as exempt from registration under the Company and investments in comparable companies, Securities Act.
(b) has answered all questions on The Investor acknowledges its understanding that the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in is intended to be exempt from registration under the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, Securities Act and that the Company does not expect is relying on the Investor’s representations and warranties in connection with such a market to develop. In additionexemption.
(c) At the time the Investor was offered the Shares, the Company does not intend to apply for listing it was and, as of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringdate hereof, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, is an “Short Sales” include, without limitation, all “short salesaccredited investor” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h501(a) under the Exchange ActSecurities Act (and has executed and delivered to the Company its Investor Questionnaire, which the Investor represents and warrants is true, correct and complete) and similar arrangements (including on has a total return basis)substantive, pre-existing relationship with the Company and sales and other transactions through non-U.S. broker dealers or foreign regulated brokersthe management of the Company.
4.7 (d) The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such the Investor’s own beneficial account (and not for the account of others), for investment purposes only purposes, and not with a view to towards, or intent of resale or in connection with, any distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, Shares in violation of the Warrants, or the Warrant SharesSecurities Act, and the Investor has no plans present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to enter into the Investor’s right at all times to sell or otherwise dispose of all or any part of such agreement or arrangementShares in compliance with applicable federal and state securities laws.
4.8 (e) The Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Shares and has sufficient such knowledge and experience in financial and or business matters to be that it is capable of evaluating the merits and risks of an the investment contemplated hereby.
(f) The Investor understands and agrees that book-entry notations for the Shares shall bear or reflect, as applicable, a legend substantially similar to the following: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES ARE SUBJECT TO TRANSFER AND OTHER RESTRICTIONS SET FORTH IN A STOCK PURCHASE AGREEMENT, DATED MARCH [5], 2020, COPIES OF WHICH ARE ON FILE WITH THE COMPANY.”
(g) The Investor did not learn of the investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or Shares as a result of any seminar general solicitation or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generallygeneral advertising.
4.10 The Investor meets the suitability standards set forth in Part B (h) No Person (as defined below) will have, as a result of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for by this Agreement, any valid right, interest or claim against or upon the Company in previous offerings of its debt and equity securitiesor the Investor for any commission, and the Placement Agent and its registered representatives receivedfee or other compensation pursuant to any agreement, as compensation for those offerings, warrants to purchase shares arrangement or understanding entered into by or on behalf of the Company’s common stockInvestor. For the purposes of this Agreement, which may give Placement Agent as incentive to sell the Securities to the Investor“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Griffin Industrial Realty, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an "accredited investor" as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) Investor, together with its purchaser representative, if any, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the Signature Page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page hereto and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company immediately of any material change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature PagePage hereto, has received and is relying relied only upon the Disclosure Package Company Information provided to the Investor by the Company in contemplation of this offering and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached hereto Exhibit B, which questionnaire is true and correct in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company Company, or any agents acting on behalf of the Placement Agent Company, that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof, and Warrantsif selling the Shares pursuant to the Registration Statement, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied. The Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.5 Investor will not, prior to the effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Shares, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Shares by the Investor or any other person or entity. Such prohibited hedging or other transactions would include, without limitation, effecting any short sale or having in effect any short position (whether or not such sale or position is against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to the Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares.
5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Intrabiotics Pharmaceuticals Inc /De)
Representations, Warranties and Covenants of the Investor. The Investor acknowledgesundersigned investor acknowledges that the Securities are being offered and sold without registration under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and in Rule 506(b) of Regulation D promulgated thereunder and that the availability of such exemption is based in material respects upon the truth of the following representations. With the foregoing in mind and to induce the Company to accept this subscription, the undersigned hereby represents and warrants toto the Company, each other person that subscribes for the Securities, the Company’s legal counsel and agrees witheach agent of the Company as follows:
(a) the undersigned has received and reviewed all information that he, she or it considers necessary or appropriate for deciding whether to purchase the Securities, including, without limitation, the registration statements of the Company and exhibits thereto, as well as the Placement Agent that:
4.1 The Investor Company’s periodic reports, filed with the United States Securities and Exchange Commission (acollectively, the “SEC Documents”); the undersigned (and/or his, her or its professional advisor, if any) is knowledgeable, sophisticated has had an opportunity to ask questions and experienced in making, receive answers from the Company regarding the terms and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase conditions of the Shares Offering and Warrantsregarding the business, including investments in securities issued by financial condition, properties, operations, prospects and other aspects of the Company and investments in comparable companies, all such questions have been answered to the undersigned’s full satisfaction; and the undersigned has further had the opportunity to obtain all information (to the extent that the Company possesses or can acquire such information without unreasonable effort or expense) which the undersigned deems necessary to evaluate the investment and to verify the accuracy of information otherwise provided to the undersigned;
(b) the undersigned has answered all questions not relied on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection any information or representations with its decision respect to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering Offering of the Shares and WarrantsSecurities, other than as expressly set forth herein or possession as set forth in the SEC Documents; the undersigned understands that no person has been authorized to give any information or distribution of offering materials in connection with the issue of the Securities in to make any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and representations other than those expressly contained herein;
(c) the Placement Agent undersigned is not authorized an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act; and the undersigned agrees to make furnish any additional information requested to assure compliance with applicable federal and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor State Securities Laws in connection with the purchase and sale of the Shares and Warrants constitutes legalSecurities;
(d) the undersigned represents that he, tax she or investment advice. The Investor it has consulted such legalwith his, her or its own tax, investment and legal advisors with respect to the federal, state, local and foreign tax and investment advisors and made such investigation as itconsequences arising from his, in her or its sole discretionpurchase of the Securities to the extent the undersigned has determined it necessary to protect his, has deemed necessary her or appropriate its own interest in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market a subscription for the Warrants being offered Securities in view of the undersigned’s prior financial experience and present financial condition, and has relied on his, her or its own analysis and investigation and that of the undersigned’s advisors in determining whether to invest in the Offering, Securities;
(e) the undersigned recognizes that an investment in the Securities involves a high degree of risk and no assurance or guarantee has or can be given that an investor in the Company does not expect will receive a return of his, her or its capital or realize a profit on such a market to develop. In additioninvestor’s investment;
(f) the undersigned has made equity investments in micro-cap companies or is experienced in business matters and regards himself, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired herself or itself as a result of the transactions contemplated hereby prior sophisticated investor able to the public disclosure of that evaluate investment and financial information or chose independent professional advisors who are unaffiliated with, have no equity interest in and are not compensated by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed or any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales affiliate of the securities of the Company (includingCompany, without limitationdirectly or indirectly, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage to assist in any purchases such evaluation and, either alone or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereofwith such advisers, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for has such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be that the undersigned is capable of evaluating the merits and risks of an investment in the Securities and has the capacity to protect the undersigned’s own interests in connection with the undersigned’s proposed investment in the Securities;
(g) the undersigned has determined that he, she or it can afford to bear the risk of the investment in the Securities, including loss of the entire investment in the Company and he, she or it will not experience personal hardship if such a loss occurs;
(h) the undersigned has all requisite power and capacity (if the undersigned is able an individual) or authority (if the undersigned is an entity) to enter into this Subscription Agreement and to perform all the obligations required to be performed by the undersigned hereunder;
(i) the undersigned is purchasing the Securities solely for his, her or its own account for investment (not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization, or other transfer thereof, and the undersigned has no present plans to enter into any contract, undertaking, agreement, or arrangement for any such resale, distribution, fractionalization, or transfer;
(j) the undersigned acknowledges that neither the Company nor any other person offered to sell the Securities to him, her or it by means of any form of general advertising, such as media advertising or seminars;
(k) the undersigned is aware and understands that no federal or state agency has made any recommendation or endorsement of the Securities as an investment, nor has any such governmental agency reviewed or passed upon the adequacy of information disclosed to the undersigned, and the Securities are being issued without registration under the Securities Act;
(l) the undersigned understands that the Securities have not been, and the undersigned has no rights to require that they be, registered or qualified under the Securities Act; that there is not now any public market for the Securities and none is anticipated; that the Securities will not be readily accepted as collateral for a loan; and that it may be extremely difficult to sell the Securities in the event of a financial emergency; as a consequence, the undersigned understands that he, she or it must bear the economic risks of the investment in the Securities for an indefinite period of time;
(m) the undersigned has been advised and understands that all certificates evidencing ownership of the Securities will bear a legend in substantially the form set forth in Section 11;
(n) the undersigned agrees: (i) that he, she or it will not sell, assign, pledge, give, transfer or otherwise dispose of (collectively, a “Transfer”) the Securities, or any interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to an offering registered under the Securities Act and all applicable State Securities Laws or pursuant to an opinion of counsel satisfactory to the Company that such registration is not required; (ii) that any Transfer of the Securities shall be subject to the applicable terms of the Company’s Articles of Incorporation and bylaws; and (iii) that the Company and any transfer agent for the Securities shall not be required to give effect to any purported Transfer of such Securities except upon compliance with the foregoing restrictions;
(o) the undersigned acknowledges that the Company has the right in its sole and absolute discretion to abandon the Offering at any time prior to the completion of the Offering and to return the previously paid subscription price of the Securities, without interest thereon, to the undersigned;
(p) the undersigned understands that, unless he, she or it notifies the Company in writing to the contrary at or before the Closing, all the undersigned’s representations and warranties contained in this Subscription Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the undersigned;
(q) The undersigned’s overall commitment to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Company will not cause such overall commitment to become disproportionate to the undersigned’s net worth. The address set forth on the signature page below is the undersigned’s true and correct residence (or, if not an individual, domiciliary) address;
(r) The undersigned is not relying on the Company with respect to the economic considerations of the undersigned relating to this investment.
4.9 (s) The Investor is unaware ofundersigned acknowledges that the information furnished by the Company to the undersigned or its advisors in connection with this Offering, except for the SEC Documents, is confidential and nonpublic and agrees that all such information that is material and not yet publicly disseminated by the Company shall be kept in no way relying onconfidence by the undersigned and neither used by the undersigned for the undersigned’s personal benefit (other than in connection with this Subscription), nor disclosed to any third party, except the undersigned’s legal and did not become aware other advisors who shall be advised of the Offering through confidential nature of such information, for any reason; provided, that this obligation shall not apply to any such information that (A) is part of the public knowledge or literature and readily accessible by the public as of the date hereof, (B) becomes a part of the public knowledge or literature and readily accessible by publication (except as a result ofof a breach of this provision) or (C) is received from third parties (except for third parties who disclose such information in violation of any confidentiality obligation);
(t) The undersigned has completed and returned to the Company a Purchaser Questionnaire, any in the form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published attached hereto. The information provided by the undersigned in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups Purchaser Questionnaire is true and social networking sites) correct and the undersigned understands that the Company is relying upon such information in connection with the Offering and sale purchase of the Securities by the undersigned. Furthermore, if the undersigned has used a representative or representatives (each, a “Purchaser Representative”) acceptable to the Company in connection with the undersigned’s evaluation of an investment in the Securities, each such Purchaser Representative has completed and returned to the Company a Purchaser Representative Questionnaire, in the form available from the Company upon request;
(u) The undersigned further certifies that the information contained in the accompanying Purchaser Questionnaire is true and correct. The undersigned further certifies that it is NOT subject to backup withholding because either (1) it is exempt from backup withholding, (2) it has not subscribing for been notified by the Securities Internal Revenue Service (“IRS”) that it is subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified it that it is no longer subject to backup withholding. The undersigned understands that these certifications, which are made under penalty of perjury, may be disclosed to the IRS by the Company and did not become aware that any false statements contained in this paragraph could be punished by fine and imprisonment;
(v) The undersigned represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with the undersigned nor any person or entity having a beneficial interest in the undersigned nor any other person or entity on whose behalf the undersigned is acting (1) is a person or entity listed in the annex to Executive Order No. 13224 (2001) issued by the President of the Offering United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), (2) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control (OFAC), (3) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank, (4) is a senior non-U.S. political figure or an immediate family member or close associate of such figure, or (5) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules or orders (categories (1) through (5) collectively, a “Prohibited Investor”). The undersigned agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. The undersigned consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its affiliates and agents of such information about the undersigned as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, antiterrorist and asset control laws, regulations, rules and orders. If the undersigned is a financial institution that is subject to the PATRIOT Act, Public Law No. 107-56 (Oct. 26, 2001) (the “Patriot Act”), the undersigned represents that the undersigned has met all of its respective obligations under the Patriot Act. The undersigned acknowledges that if, following the investment in the Company by the undersigned, the Company reasonably believes that the undersigned is a Prohibited Investor or is otherwise engaged in suspicious activity or refuses to provide promptly information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the undersigned to transfer the Shares. The undersigned further acknowledges that the undersigned will not have any claim against the Company or any of its affiliates or agents for any form of damages as a result of any seminar of the foregoing actions; and
(w) The foregoing representations, warranties and agreements, together with all other representations and warranties made or meeting to which given by the Investor was invited by, or any solicitation of a subscription by, a person not previously known undersigned to the Investor Company in any other written statement or document delivered in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted , shall be true and correct in all respects on and as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent date of the Closing as incentive to sell the Securities to the Investorif made on and as of such date and shall survive such date.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Clean Energy Technologies, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act and that the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Units; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Units set forth in Section 3 of the Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Units or any arrangement or understanding with any other persons regarding the distribution of such Units; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Units set forth on in Section 3 of the Signature PagePage to the Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Units, and fully understands that the Units are speculative investments, which involve a high degree of risk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue issuance of the Securities Units, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Units, Shares, Warrants or Warrant Shares without complying with the provisions of this Agreement, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, except as set forth or incorporated by reference which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Units will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusUnits.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares or Warrant Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Units.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the Units to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor’s representations made in this Agreement. The Investor understands that without an active market, the liquidity of the Warrants will Units must be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of held indefinitely unless subsequently registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of Act and qualified under applicable state securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of unless an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company exemption from such subscribers; registration and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offeringqualification requirements is otherwise available. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent Company has acted as a placement agent no obligation to register or qualify the Units or underlying Shares or Warrant Shares for resale. The Investor acknowledges that the Company will refuse to register any transfer of Units, Shares or Warrant Shares that is not made in accordance with the provisions of Regulation S, registered pursuant to the Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Company in previous offerings of its debt and equity securitiesShares or Warrant Shares, and requirements relating to the Placement Agent Company which are outside of the Investor’s control, and its registered representatives receivedwhich the Company is under no obligation and may not be able to satisfy. The Investor has been independently advised as to the applicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares or Warrant Shares in such jurisdiction and it is aware of the risks and other characteristics of the Units and of the fact that the undersigned may not resell the Units, as compensation for those offerings, warrants to purchase shares Shares or Warrant Shares except in accordance with applicable securities legislation and regulatory policy.
5.9 A copy of the Company’s common stockannual report on Form 10-K, which may give Placement Agent as incentive to sell its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement AgentSEC’s New York, NY office, website at ▇▇▇▇▇▇ ▇. .▇▇▇.▇▇▇▇▇▇▇▇, entered into a final settlement .
5.10 For purposes of compliance with the Massachusetts Securities Division Regulation S exemption for the offer and sale of the Units (defined in 2001 pursuant this Section 5.10 to which he agreedinclude the underlying Shares and Warrant Shares) to non-U.S. Persons, among other thingsif the Investor is not a “U.S. Person,” as such term is defined in Rule 902(k) of Regulation S,[1] the Investor represents and warrants that the Investor is a person or entity that is outside the United States, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.and further represents and warrants as follows: ________________
Appears in 1 contract
Sources: Securities Purchase Agreement (NewGen BioPharma Corp.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (bii) the Investor is acquiring the number of Common Shares, Preferred Shares and Warrants set forth in Section 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of the Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Common Shares, Conversion Shares and Warrant Shares or until the Company is otherwise no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Common Shares, Preferred Shares and Warrants set forth on in Paragraph 3 of the Signature PageSecurities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or contained herein. The Investor understands that neither this Offering nor the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue acquisition of the Securities have been registered under the Securities Act or registered or qualified under any state securities law in any jurisdiction outside reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the United States where action for that purpose is required, (b) if bona fide nature of the Investor’s investment intent as expressed herein and the information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is outside the United Statestrue, it will comply with all applicable laws correct and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, complete in all cases at its own expense material respects.
5.2 The Investor (other than individuals) is an entity duly organized, validly existing and (c) in good standing under the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale laws of the Shares jurisdiction of its organization with full power and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby by this Agreement and has taken all necessary action otherwise to authorize the carry out its obligations thereunder. The execution, delivery and performance by the Investor of the transactions contemplated by this AgreementAgreement have been duly authorized by all necessary corporate or similar action on the part of the Investor. This Agreement has been duly executed by the Investor, and (b) this Agreement constitutes a when delivered by the Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Investor Investor, enforceable against the Investor it in accordance with its terms, except (i) as enforceability may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, (ii) as limited by rules of law governing specific performance, injunctive relief, or other equitable remedies and contracting parties’ rights generally and except as enforceability (iii) to the extent the indemnification provisions contained in this Agreement may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any limited by applicable federal or state securities law, rule or regulation)laws.
4.4 5.3 The Investor understands that nothing in this Agreement, is not purchasing the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired Securities as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offeringany advertisement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television, television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Internet Securities and (includingii) the shares of Common Stock receivable upon conversion or exercise thereof, without limitationin each case, internet “blogs,” bulletin boardsfor its own account and not with a view towards, discussion groups and social networking sites) or for resale in connection with, the public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities under an exemption under the Securities Act and reserves the right to dispose of the Common Shares, Conversion Shares and Warrant Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Offering Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Securities.
5.6 The Investor and its advisors, if any, have been furnished with all publicly available materials relating to the business, finances and operations of the Company and such other publicly available materials relating to the offer and sale of the Securities and is not subscribing for as have been requested by the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 Investor. The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives receivedadvisors, as compensation for those offeringsif any, warrants have been afforded the opportunity to purchase shares ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s common stock, which may give Placement Agent as incentive right to sell rely on the Company’s representations and warranties contained herein. The Investor understands that its investment in the Securities to the Investorinvolves a high degree of risk.
4.13 5.7 The Investor is aware understands that a Managing Partner no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Placement Agent’s New YorkSecurities, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with nor have such authorities passed upon or endorsed the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with merits of the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealeroffering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and that: (i) the Placement Agent that:
4.1 The Investor (a) is an "accredited investor" as defined in Regulation D under the Securities Act, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like similar to that involved in the purchase of the Shares Securities, and Warrantshas requested, including investments received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Securities; (ii) the Investor understands that the Securities are "restricted securities" and have not been registered under the Securities Act and is acquiring the number of Securities set forth in paragraph 3 of the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only, has no present intention of distributing any of such Securities and has no arrangement or understanding with any other persons regarding the distribution of such Securities (this representation and warranty not limiting the Investor's right to sell Securities pursuant to a Registration Statement filed under the Registration Rights Agreement or otherwise, or other than with respect to any claim arising out of a breach of this representation and warranty, the Investor's right to indemnification under Section 3 of the Registration Rights Agreement); (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act, applicable state securities issued by laws and the Company respective rules and investments in comparable companies, regulations promulgated thereunder; (biv) the Investor has answered all questions on in paragraph 4 of the Signature Page Securities Purchase Agreement and the Investor Questionnaire attached hereto as Exhibit B for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Securities or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue paragraph 3 of the Securities in any jurisdiction outside Purchase Agreement, relied upon the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws representations and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale warranties of the Shares Company contained herein and Warrants, except as set forth or incorporated by reference the information contained in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchangeSEC Reports. The Investor understands that without an active market, the liquidity issuance of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior Securities to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of been registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) registered or qualified under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereofany state securities law, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stockreliance on specific exemptions therefrom, which exemptions may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreeddepend upon, among other things, never the representations made by the Investor in this Agreement. No person (including without limitation the Placement Agent) is authorized by the Company to seek provide any representation that is inconsistent with or in addition to register with those contained herein or in the Massachusetts Securities Division in SEC Reports, and the Investor acknowledges that it has not received or relied on any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealersuch representations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Arcadia Resources, Inc)
Representations, Warranties and Covenants of the Investor. The In order to induce the Company to accept this Agreement, the Investor acknowledges, hereby represents and warrants to, and agrees covenants with, the Company and the Placement Agent thatas follows:
4.1 (a) The Investor has received and had the opportunity to review the Information Documents, and has been given access to full and complete information regarding the Company and has utilized such access to the Investor’s satisfaction for the purpose of obtaining such information regarding the Company as the Investor has reasonably requested; and, particularly, the Investor has been given reasonable opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this Agreement and to obtain any additional information, to the extent reasonably available;
(b) Except for the Company information described in the Information Documents, the Investor has not been furnished with any other materials or literature relating to the offer and sale of the Securities; except as set forth in this Agreement, no representations or warranties have been made to the Investor by the Company, or any agent, employee, or affiliate of the Company or such selling agent.
(c) The Investor believes that an investment in the Securities is suitable for the Investor based upon the Investor investment objectives and financial needs. The Investor (ai) has adequate means for providing for the Investor’s current financial needs and personal contingencies; (ii) has no need for liquidity in this investment; (iii) at the present time, can afford a complete loss of such investment; and (iv) does not have an overall commitment to investments which are not readily marketable that is disproportionate to the Investor's net worth, and the Investor's investment in the Securities will not cause such overall commitment to become excessive.
(d) The Investor, in reaching a decision to subscribe, has such knowledge and experience in financial and business matters that the Investor is capable of reading and interpreting financial statements and evaluating the merits and risk of an investment in the Securities and has the net worth to undertake such risks.
(e) The Investor was not offered or sold the Securities, directly or indirectly, by means of any form of general advertising or general solicitation, including, but not limited to, the following: (1) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar medium of or broadcast over television or radio; or (2) to the knowledge of the undersigned, any seminar or meeting whose attendees had been invited by any general solicitation or general advertising.
(f) The Investor has obtained, to the extent the Investor deems necessary, the Investor’s own personal professional advice with respect to the risks inherent in the investment in the securities, and the suitability of an investment in the Securities in light of the Investor's financial condition and investment needs;
(g) The Investor recognizes that the Securities as an investment involves a high degree of risk, including those set forth under the caption "Risk Factors" in our annual report filed with the Securities and Exchange Commission on Form 10K, and, in addition to those Risk Factors, the Risk Factors as listed in Appendix III of this Agreement.
5.2 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to, to investments in securities presenting representing an investment decision like that involved in the purchase of the Shares and WarrantsSecurities, including investments in securities issued by the Company Company, and investments has requested, received, reviewed and understood all information it deems relevant in comparable companiesmaking an informed decision to purchase the Securities, including, without limitation, the information contained in the Information Documents; (bii) it acknowledges that the offering of the Securities pursuant to this Agreement has answered all questions on not been reviewed by the Signature Page and Commission or any state or Canadian regulatory authority; (iii) the Investor Questionnaire is acquiring the number of Securities set forth in the signature page hereto, for its own account for investment only and with no present intention of distributing any of the Securities the distribution thereof; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the securities which form such Securities except in compliance with the Securities Act, the Securities Act Rules and Regulations and any applicable state securities or blue sky laws; (v) the Investor has completed or caused to be completed the Stock Certificate Questionnaire, attached hereto as Appendix I, and the answers thereto are true and correct as of the date hereof and will be true and correct as of hereof; (vi) the Closing Date and (c) Investor has, in connection with its decision to purchase the number of Shares and Warrants Securities set forth on the Signature Pagesignature page hereof, has received and is relying only not relied upon any representations or other information (whether oral or written) other than as set forth in the Disclosure Package Information Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein; (vii) the Investor has had an opportunity to discuss this investment with representatives of the Company and ask questions of them and such questions have been answered to the full satisfaction of the Investor; and (viii) the Investor is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act because such Investor meets at least one of the conditions set forth in Appendix II hereto.
4.2 5.3 The Purchase acknowledges that (a1) No action has the Securities have not been or will been registered under the provisions of the 1933 Act, and may not be taken in any jurisdiction outside transferred unless the United States by Investor shall have delivered to the Company an opinion of counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to Rule 144 promulgated under the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue 1933 Act; (2) any sale of the Securities made in reliance on Rule 144 promulgated under the 1933 Act may be made only in accordance with the terms of said Rule and further, if said Rule is not applicable, any jurisdiction outside resale of such Securities under circumstances in which the United States where action for seller, or the person through whom the sale is made, may be deemed to be an underwriter, as that purpose term is requiredused in the 1933 Act, (b) if may require compliance with some other exemption under the Investor is outside 1933 Act or the United States, it will comply with all applicable laws rules and regulations in each foreign jurisdiction in which it purchases, offers, sells of the Securities and Exchange Commission (“Commission” or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense the “SEC”) thereunder; and (c3) neither the Company nor any other person is under any obligation to register the Securities under the 1933 Act.
5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, (ii) the Investor is duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization, and (biii) upon the execution and delivery of this Agreement, this Agreement constitutes shall constitute a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 (a) The Investor understands recognizes that nothing an investment in this Agreementthe Securities is speculative and involves a high degree of risk, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale including a risk of total loss of the Shares Investor’s investment. The Investor can bear the economic risk of this investment and Warrants constitutes legal, tax or investment advicecan afford a complete loss thereof. The Investor has consulted such legalknowledge and prior substantial investment experience in financial and business matters, tax including investment in non-listed and non-registered securities, and has had the opportunity to read the SEC Documents and to evaluate the merits and risks of investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, Company and that the Shares.
(b) All of the information provided to the Company does not expect such a market or its agents or representatives concerning the Investor’s suitability to develop. In addition, invest in the Company does not intend to apply for listing and the representations and warranties contained herein, are complete, true and correct as of the Warrants on any securities exchangedate hereof. The Investor understands that without the Company is relying on the statements contained herein to establish an active market, the liquidity of the Warrants will be limitedexemption from registration under U.S. federal and state securities laws.
4.5 5.6 The Investor will maintain address set forth in the confidentiality of all information acquired as a result of signature page hereto is the transactions contemplated hereby prior Investor’s true and correct domicile.
5.7 Prior to the public disclosure of that information by the Company in accordance with Section 13 execution of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the OfferingPurchase Agreement, the Investor has and any affiliates of Investor have not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged participated in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) hedging transactions involving the Company’s securities)Common Stock and have not sold short any of the Company’s Common Stock. The Investor covenants that it will does not engage in have a present intention to sell the Securities, nor a present arrangement or intention to effect any purchases or sales distribution of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired to or through any person or entity for purposes of selling, offering, distributing or otherwise disposing of any of the Securities.
5.8 The Investor understands and agrees that each certificate or other document evidencing any of the Securities shall be endorsed with the legend in substantially the form set forth below, as well as any other legends required by applicable law, and the Investor covenants that the Investor shall not transfer the Shares represented by any such certificate without complying with the restrictions on transfer described in the legends endorsed on such certificates: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR REGISTERED OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS OR CANADIAN SECURITIES LAWS. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE STATE LAW AND, IF APPLICABLE, CANADIAN SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION OR QUALIFICATIONS IS LEGALLY REQUIRED FOR SUCH TRANSFER.
5.9 The Investor agrees not to trade any of the Securities to any person or company before the date which is 6 months from the Closing Date.
5.10 The Investor may be required to bear the economic risk of the investment indefinitely because none of the Securities may be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from registration is available. Any resale of any of the Securities can be made only pursuant to this Agreement (i) a registration statement under the Securities Act which is effective and current at the time of sale or (ii) a specific exemption from the registration requirements of the Securities Act. In claiming any such exemption, the Investor will, prior to cover any short position offer or sale or distribution of any Securities advise the Company and, if requested, provide the Company with a favorable written opinion of counsel, in form and substance satisfactory to counsel to the Common Stock Company, as to the applicability of such exemption to the proposed sale or distribution.
5.11 The Investor understands that the exemption afforded by Rule 144 promulgated by the Commission under the Securities Act (“Rule 144”) will not become available for at least six months from the date of payment for the Shares and any sales in reliance on Rule 144, if doing so would then available, can be made only in violation accordance with the terms and conditions of applicable securities laws. For purposes hereofthat rule, “Short Sales” includeincluding, without limitationamong other things, all “short sales” as defined a requirement that the Company then be subject to, and current, in Rule 200 promulgated under Regulation SHO its periodic filing requirements under the Exchange Act, whether or not against and, among other things, a limitation on the boxamount of shares of Common Stock that may be sold in specified time periods and the manner in which the sale can be made; that, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) while the Company’s Common Stock is registered under the Exchange Act) Act and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor the Company is acquiring presently subject to the Shares and Warrants (including, upon the exercise periodic reporting requirements of the WarrantsExchange Act, there can be no assurance that the Warrant Shares) solely for Company will remain subject to such Investor’s own account for investment purposes only reporting obligations or current in its filing obligations; and not with a view to or intent of resale or distribution thereofthat, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person case Rule 144 is not applicable to sell or transfer all or any part a disposition of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection compliance with the Offering and sale registration provisions of the Securities and is not subscribing for the Securities and did not become aware of the Offering through Act or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generallysome other exemption from such registration provisions will be required.
4.10 5.12 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that which would give rise to any claim by any person for brokerage commissionscommission, finders’ finder’s fees or the like similar payments by Investor relating to this Purchase Agreement or the transactions contemplated hereby. The Company shall have no obligation with respect to such fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated hereby. The Investor shall indemnify and hold harmless the Company, its employees, officers, directors, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorney’s fees) and expenses suffered in respect of any such claimed or existing fees, as and when incurred.
4.12 5.13 The Investor acknowledges that execution, delivery and performance of this Purchase Agreement by the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securitiesInvestor, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares consummation of the Companytransactions contemplated hereby, will not (i) violate any provision of the Investor’s common stockcorporate organizational documents, (ii) violate, conflict with or result in the breach of any of the terms of, result in a material modification of the effect of, otherwise, give any other contracting party the right to terminate, or constitute (or with notice or lapse of time or both) a default under, any contract or other agreement to which the Investor is a party or by or to which the Investor or any of the Investor’s assets or properties may give Placement Agent as incentive to sell be bound or subject, (iii) violate any order, judgment, injunction, award or decree of any court, arbitrator or governmental or regulatory body by which the Securities Investor, or the assets or properties of the Investor are bound and (iv) to the Investor’s knowledge, violate any statute, law or regulation, including but not limited to the USA Patriot Act.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Flint Telecom Group Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledgesInvestor, severally and not jointly with any other Investors, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and or investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) has answered all questions the Investor is acquiring the number of Shares set forth on the Signature Page signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) immediately following the Closing the Investor Questionnaire will be the beneficial owner of the Shares purchased pursuant to this Agreement; (v) the Investor has filled in all requested information on the signature page hereto for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (vi) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvii) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package confidential Private Placement Memorandum dated December 16, 2003, the SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions depend upon, among other things, the Investor’s representations, warranties and covenants herein.
4.2 (a) No 5.2 The Investor acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof and, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend or legends that prohibit their transfer except in accordance with the Securities Act and applicable state securities laws. The Investor acknowledges that there may occasionally be times when the Company, except based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the prospectus forming a part of the Registration Statement (the “Prospectus”) until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus, in which case the Prospectus Supplement or any free writing prospectusInvestor will be unable to effect a Disposition of the Shares under the Registration Statement.
4.3 5.4 The Investor further represents and warrants to, and covenants with, the Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or indemnity and contribution that may be violative of limited by state or federal securities laws or the public policy underlying such laws.
5.5 The Investor will not, prior to the effectiveness of the Registration Statement (as defined in Section 7.1(a)), sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any lawright with respect to (collectively, rule a “Disposition”), the Shares or regulation any other Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is covered or against the box and regardless of when such position was entered into) or any purchase, sale or grant of any right (including without limitation any federal put or state securities lawcall option or other derivative security) with respect to the Common Stock of the Company or with respect to any security (other than a broad-based market basket or index) that includes, rule relates to or regulation)derives any significant part of its value from the Common Stock of the Company.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 5.7 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed been presented with or solicited by or through any information regarding leaflet, public promotional meeting, or television advertisement or, to the Offering Investor’s knowledge, with any other form of communication which appeared to any third parties (other than its legal, accounting and other advisors) and the Investor to constitute general solicitation or advertising with respect to the Offering.
5.8 The Investor has not engaged taken and will not take any action designed to or that might reasonably be expected to cause or result in any purchases stabilization or sales manipulation of the securities price of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock to facilitate the sale or resale of the Shares, in each case if doing so taking such action would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Securities Purchase Agreement (Impco Technologies Inc)
Representations, Warranties and Covenants of the Investor. 4.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent that:
4.1 The Investor that (a) the Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Units, including but not limited to, the Company's Registration Statement and all documents incorporated therein by reference, (b) the Investor has answered all questions on the Signature Page and for use in preparation of the Investor Questionnaire Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and Date, (c) the Investor, in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying relied only upon the Disclosure Package Base Prospectus, the Prospectus Supplement, the Documents incorporated therein by reference, the Company's regular reports on Forms 10-K, 10-Q and 8-K as filed by the Company with the Commission, and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein, and (d) the Investor is an "accredited investor" within the meaning of Rule 501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the "Securities Act").
4.2 (a) No The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or Warrants or has in its it possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not expense. No party has been authorized to make make, and has have not made made, any representation, disclosure representation or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, Prospectus or the Prospectus Supplement or any free writing prospectusSupplement.
4.3 The Investor further represents and warrants to, and covenants with, the Company that (a) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ parties rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation)legally unenforceable.
4.4 The Investor understands understand that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The Investor will maintain represents, warrants and agrees that, since the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at date on which the Placement Agent Investor was first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to until the time that the transactions contemplated by this Agreement material terms of the transaction hereunder are publicly disclosed. The Investor agrees that disclosed in a press release or a filing with the Commission, it has not engaged, and will not use engage, in any short selling of the Securities acquired pursuant to this Agreement to cover Company's securities, or established or increased any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” "put equivalent position" as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h16(a)- 1(h) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor's securities.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor has answered all questions carefully read and fully understands the risks involved with an investment in the Company including, without limitation, the risks identified on Annex II, attached hereto, (iii) the Investor is acquiring the number of Shares set forth in Section 3 of the Signature Page to the Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iv) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (v) all of the representations made by the Investor Questionnaire are true, correct and the answers thereto are true and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in Section 3 of the Signature PagePage to the Securities Purchase Agreement, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. There are no suits, pending litigation, or claims against the undersigned that could materially affect the net worth of the Investor.
4.2 (a) No 5.2 The Investor acknowledges that it has had access to the Exchange Act Documents and has carefully reviewed the same. The Investor further acknowledges that the Company has made available to it the opportunity to ask questions of and receive answers from the Company’s officers and directors concerning the terms and conditions of this Agreement and the business and financial condition of the Company, and the Investor has received to its satisfaction, such information about the business and financial condition of the Company and the terms and conditions of the Agreement as it has requested. The Investor has carefully considered the potential risks relating to the Company and a purchase of the Shares, and fully understands that the Shares are speculative investments, which involve a high degree of risk of loss of the Investor’s entire investment. Among others, the undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents and Annex II.
5.3 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue issuance of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.4 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The overall commitment of the Investor to investments, except as set forth or incorporated by reference which are not readily marketable, is not excessive in view of the Investor’s net worth and financial circumstances, and any purchase of the Shares will not cause such commitment to become excessive. The Investor is able to bear the economic risk of an investment in the Base ProspectusShares.
5.5 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 5.6 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.7 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. the Shares.
5.8 The Investor also understands that there is no established public trading market for the Warrants being offered issuance of the Shares to the Investor has not been registered under the Securities Act in the Offeringreliance upon one or more specific exemptions therefrom, and that the Company does not expect such a market to develop. In additionincluding Regulation D and/or Regulation S, which exemption depends upon, among other things, the Company does not intend to apply for listing accuracy of the Warrants on any securities exchangeInvestor’s representations made in this Agreement. The Investor understands that without an active market, the liquidity of the Warrants will Shares must be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of held indefinitely unless subsequently registered under the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of Act and qualified under applicable state securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of unless an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company exemption from such subscribers; registration and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offeringqualification requirements is otherwise available. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent Company has acted as a placement agent no obligation to register or qualify the Shares for resale. The Investor acknowledges that the Company will refuse to register any transfer of Shares that is not made in accordance with the provisions of Regulation S, registered pursuant to the Securities Act or otherwise exempt from such registration. The Investor further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Company in previous offerings of its debt and equity securitiesShares, and requirements relating to the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares Company which are outside of the CompanyInvestor’s common stockcontrol, and which the Company is under no obligation and may give Placement Agent not be able to satisfy. The Investor has been independently advised as incentive to sell the Securities to the Investorapplicable holding period imposed in respect of the Shares by securities legislation in the jurisdiction in which the undersigned resides and confirms that no representation has been made respecting the applicable holding periods for the Shares in such jurisdiction and it is aware of the risks and other characteristics of the Shares and of the fact that the undersigned may not resell the Shares except in accordance with applicable securities legislation and regulatory policy.
4.13 The Investor is aware that a Managing Partner in 5.9 A copy of the Placement AgentCompany annual report on Form 10-K, its quarterly reports on Form 10-Q, current reports on Form 8-K and information statements are available on the SEC’s New York, NY office, website at ▇▇▇▇▇▇ ▇. .▇▇▇.▇▇▇▇▇▇▇▇, entered into a final settlement .
5.10 For purposes of compliance with the Massachusetts Securities Division Regulation S exemption for the offer and sale of the Shares to non-U.S. Persons, if the Investor is not a “U.S. Person,” as such term is defined in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇Rule 902(k) of ▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at ▇,▇ the Investor represents and warrants they are a prior broker-dealer.person or entity that is outside the United Sates, and further represents and warrants as follows:
Appears in 1 contract
Sources: Securities Purchase Agreement (NYXIO TECHNOLOGIES Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth in paragraph 3 of the first page of this Agreement for its own account (or for the accounts of any of its affiliates to whom the Shares may be transferred) for investment only and with no present intention of distributing any of such Shares in violation of the Securities Act nor does the Investor have any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered filled in all questions requested information on the Signature Page first page and the Investor Questionnaire signature page of this Agreement for use in preparation of the Registration Statement and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date Date; (v) the Investor will notify the Company promptly of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on in paragraph 3 of the Signature Pagefirst page of this Agreement, has received carefully read and is relying relied only upon the Disclosure Package SEC Documents, other publicly available information and the documents incorporated by reference thereinrepresentations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor’s investment intent as expressed herein.
4.2 (a) No 5.2 The Investor acknowledges that the Company has represented that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where action for that purpose is required, (b) if . If the Investor is located or domiciled outside the United States, States it will agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement, including Section 7.2 hereof and, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied, if applicable, and Warrantsthe Investor acknowledges that the certificates evidencing the Shares will be imprinted with (i) a legend that prohibits their transfer except in accordance therewith, except and (ii) a legend required pursuant to the terms of the Rights Agreement. The Investor acknowledges that there may occasionally be times when the Company, based on the advice of its counsel, determines that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement until such time as set forth an amendment to the Registration Statement has been filed by the Company and declared effective by the SEC or incorporated by reference in until the Base Company has amended or supplemented such Prospectus.
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, Agreement and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification and contribution agreements of the Investors herein may be legally unenforceable.
5.5 The Investor will not, prior to the enforceability effectiveness of the Registration Statement, sell, offer to sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Common Stock of the Company in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to or could reasonably be expected to lead to or result in a Disposition of Common Stock of the Company by the Investor or any other person or entity in violation of the Securities Act. Such prohibited hedging or other transactions would include without limitation effecting any short sale or having in effect any short position (whether or not such sale or position is against the box if such position was entered into after the effective date of this Agreement) or any purchase, sale or grant of any rights right (including without limitation any put or call option) with respect to indemnification or contribution that may be violative the Common Stock of the public policy underlying Company or with respect to any lawsecurity (other than a broad-based market basket or index) that includes, rule relates to or regulation (including derives any federal significant part of its value from the Common Stock of the Company. Nothing in this Section 5.5 is intended or state securities law, rule shall be construed as placing any limitations or regulation)restrictions on the Investor’s right to make any Dispositions of any shares of Common Stock the Investor holds in the Company in addition to and apart from the Shares; provided any such Dispositions do not violate the Securities Act.
4.4 5.6 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 6.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agent that:
4.1 The Investor (a) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the Shares set forth in Section 3 of this Agreement in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares; (iii) the Investor is not acquiring the Shares for the purpose of selling or transferring the Shares or granting, issuing or transferring interests in, or options over the Shares within 12 months of their date of issue; (iv) the Investor has answered all questions on not entered into any arrangement or understanding with any other persons regarding the Signature Page distribution of such Shares; (v) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder; (vi) the Investor Questionnaire shall furnish to the Company such information regarding such Investor and the answers thereto are true distribution proposed by such Investor as the Company may reasonably request in writing and correct as of the date hereof and will shall be true and correct as of the Closing Date reasonably required in connection with any U.S. Registration; and (cvii) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying in Section 3 of this Agreement relied only upon the Disclosure Package ASX Documents and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by representations and warranties of the Company or the Placement Agent contained herein. The Investor understands that would permit an offering its acquisition of the Shares and Warrantshas not been registered under the Securities Act or registered or qualified under any applicable securities law in reliance on specific exemptions therefrom, or possession or distribution which exemptions may depend upon, among other things, the bona fide nature of offering materials in connection the Investor’s investment intent as expressed herein. Subject to compliance with the issue Securities Act, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of time and the confirmation in (iii) above is understood to be a statement by the Investor of present intention and not an undertaking not to sell, particularly where the Investor’s investment objectives or market conditions change . The Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire, which questionnaire is true, correct and complete in all material respects.
6.2 The Investor shall not offer, sell, contract to sell or otherwise dispose of or deliver any of the Shares unless: (i) the Shares are sold on the ASX in compliance with Regulation S of the Securities Act; or (ii) the Shares are sold in a transaction that does not require registration under the Securities Act or any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) of the Placement Agent is not authorized to make and has not made any representation, disclosure or use states of any information in connection with the issue, placement, purchase United States governing the offer and sale of securities and, (iii) prior to and as a condition to the Shares execution of the offer, sale or delivery described in subclauses (i) and Warrants(ii) above, except as set forth or incorporated by reference in such Investor has furnished to the Base ProspectusCompany an opinion of counsel satisfactory to the Company to such effect, unless the Company waives receipt of such opinion.
6.3 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein may be legally unenforceable.
6.4 The Investor has not engaged in any short sales or similar transactions with respect to the enforceability of Company’s capital stock, nor has the Investor, directly or indirectly, caused any rights person to indemnification engage in any short sales or contribution that may be violative similar transactions with respect to the Company’s capital stock. Without limiting the foregoing, Investor will not use any of the public policy underlying Shares acquired pursuant to the Agreements to cover any law, rule or regulation (including any short position in the capital stock of the Company if doing so would be in violation of applicable securities laws and Investor will otherwise comply with federal or state securities law, rule or regulation)laws of the United States in the holding and resale of the Shares.
4.4 6.5 The Investor understands that nothing in this Agreementthe ASX Documents, the ProspectusAgreements, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. Shares.
6.6 The Investor also understands that there is no established acknowledges that, if it has material non-public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legalCompany, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions may apply to it. The Investor agrees not to, and not to cause any other person to, acquire (as that term is defined in the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇ ▇▇. ▇ ▇▇▇▇▇ (Cth)) any of the Company’s securities after it has had access to material non-public information if doing so would be a breach of ▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer▇▇▇▇▇▇▇ restrictions.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants (as of the date hereof) to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsUnits, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants Units set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference thereintherein and the Offering Information and the representations, warranties, covenants and agreements of the Company contained in the Placement Agreement.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent Agents that would permit an offering of the Shares and WarrantsUnits, or possession or distribution of offering materials in connection with the issue of the Securities Units in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Units or has in its possession or distributes any offering material, in all cases at its own expense and (c) none of the Placement Agent Agents is not authorized to make and or has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and WarrantsUnits, except as set forth or incorporated by reference in the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement or any free writing prospectusSupplement.
4.3 The Investor is either an individual or an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation). The Investor's execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the Investor's certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Investor is subject (including federal and state securities laws and regulations), or by which any property or asset of the Investor is bound or affected.
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedUnits.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the a Placement Agent first contacted such the Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of transactions involving the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s 's securities). The Investor covenants that it will (i) maintain the confidentiality of all information acquired as a result of the transactions contemplated herein and (ii) not engage in any purchases or sales of the securities of the Company (including Short Sales) ), in each case prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities Units acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “"Short Sales” " include, without limitation, all “"short sales” " as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “"put equivalent positions” " (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Sources: Subscription Agreement (Magnum Hunter Resources Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and agrees covenants with, the Company and the Placement Agent Current Stockholder that:
4.1 The : (i) the Investor is an institutional "accredited investor" as defined in paragraphs (1), (2), (3) or (7) of subsection (a) of Rule 501 under the Securities Act and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, to investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the Shares; (bii) the Investor is acquiring the number of Shares set forth on the signature page hereto in the ordinary course of its business and for its own account for investment only and with no present intention of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Signature Page and the Investor Questionnaire hereto for use in preparation of the Registration Statement and the answers thereto are true true, correct and correct complete as of the date hereof and will be true true, correct and correct complete as of the Closing Date Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (cvi) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Pagesignature page hereto, has received and is relying relied only upon the Disclosure Package Exchange Act Documents and the documents incorporated by reference thereinrepresentations and warranties of the Company and the Current Stockholder contained herein. Investor understands that its acquisition of the Shares has not been registered under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of the Investor's investment intent as expressed herein. Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire attached as Exhibit B to the Exchange Act Documents, which questionnaire is true, correct and complete in all material respects.
4.2 (a) No 5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and WarrantsShares, or possession or distribution of offering materials in connection with the issue of the Securities Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required, (b) if the . Each Investor is outside the United States, it States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) expense.
5.3 The Investor hereby covenants with the Placement Agent is Company not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and Warrantswithout causing the prospectus delivery requirement under the Securities Act to be satisfied, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth or incorporated by reference in the Base ProspectusSection 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Prospectus Supplement or any free writing prospectus.
4.3 The Company and the Current Stockholder that (i) the Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (bii) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability indemnification agreements of any rights to indemnification or contribution that the Investors herein may be violative legally unenforceable.
5.5 Investor will not use any of the public policy underlying restricted Shares acquired pursuant to this Agreement to cover any law, rule or regulation (including any federal or state short position in the Common Stock of the Company if doing so would be in violation of applicable securities law, rule or regulation)laws.
4.4 5.6 The Investor understands that nothing in the Exchange Act Documents, this Agreement, the Prospectus, the Disclosure Package Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. To induce the Company to accept this subscription, the Investor represents, warrants and covenants as follows:
(a) The Investor acknowledgeshas been furnished and has carefully read the Memorandum relating to the offering of the Units by the Company, represents including all the exhibits and warrants appendices thereto. The Investor is not relying upon any other information, representation or warranty by the Company or any agent of it in determining to invest in the Company. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal and related matters concerning an investment in the Units and on that basis believes that an investment in the Units is suitable and appropriate for the Investor.
(b) The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Units, is able to bear the economic risks and lack of liquidity of an investment in the Units, is able to bear the risk of loss of its entire investment in the Units and understands the risks of, and other considerations relating to, the purchase of the Units, including the matters set forth under the caption “Risk Factors” in the Memorandum.
(c) The Investor understands that the Units have not been registered under the Securities Act, the securities laws of any state thereof or the securities laws of any other jurisdiction, nor is such registration contemplated. The Investor understands and agrees withfurther that the Shares and Warrants constituting the Units must be held indefinitely and may only be transferred in accordance with the restrictions set forth in a legend substantially in the form set forth below which will be placed on the certificate or certificates evidencing the Shares and Warrants issued to the Investor at the Closing: THE SECURITIES REPRESENTED HEREBY MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144(K), OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933 OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
(d) The Investor is purchasing the Units for its own account, with the intention of holding the Shares and Warrants constituting the Units for investment and with no present intention of dividing or allowing others to participate in this investment or of reselling or otherwise participating, directly or indirectly, in a distribution of the Shares or Warrants. The Units to be acquired hereunder are being acquired by the Investor for investment purposes only and not with a view to resale or distribution.
(e) To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Company, the offering of the Units or any statement made in the Memorandum, and the Investor has been afforded the opportunity to ask questions of representatives of the Company concerning the Company and the Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated terms and experienced in makingconditions of the Offering, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved obtain any additional information necessary to verify the accuracy of the information set forth in the purchase Memorandum and other information provided by the Company.
(f) The attached Investor Questionnaire that the Investor has completed and all of the Shares statements, answers and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto information therein are true and correct as of the date hereof and will be true and correct as of the date of the Initial Closing Date or any subsequent closing, as the case may be. The Investor Questionnaire is incorporated herein by this reference.
(g) The foregoing representations, warranties, and covenants and all other information which the Investor has provided concerning the Investor and the Investor’s financial condition are true and accurate as of the date hereof. The Investor agrees to immediately notify the Company if any information, representations, warranties, and covenants of the Investor contained in this Subscription Agreement, including the Investor Questionnaire, becomes untrue prior to the Closing.
(ch) in connection with its decision to purchase the number of Shares and Warrants set forth All action on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering part of the Shares Investor, and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside a corporation, its officers, directors, and stockholders, necessary for the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares Units pursuant hereto and Warrantsthe performance of the Investor's obligations hereunder, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectushas been taken.
4.3 (i) The Investor has full rightrepresents that it is an "accredited investor" as that term is defined in SEC Rule 501(a) of Regulation D, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation17 C.F.R. 230.501(a).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any purchases or sales of the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales of the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 6.1 The Investor acknowledges, hereby represents and warrants to, to and agrees with, covenants with the Company and the Placement Agent (which representations, warranties and covenants shall survive the Closing) that:
4.1 The Investor (a) if the Investor is knowledgeablean individual or other entity, sophisticated the Investor has the legal capacity and experienced in makingcompetence to enter into and execute this Agreement and to take all actions required pursuant hereto and, if the Investor is a corporation, it is duly incorporated and is qualified validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase authorize execution and performance of this Agreement on behalf of the Shares and Warrants, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and the documents incorporated by reference therein.Investor;
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if the Investor is outside a corporation or other entity, the United Statesentering into of this Agreement and the transactions contemplated hereby do not result in the violation of any of the terms and provisions of any law applicable to, it will comply with all applicable laws and regulations in each foreign jurisdiction in or the constituent documents of, the Investor or of any agreement, written or oral, to which it purchases, offers, sells the Investor may be a party or delivers Securities by which the Investor is or has in its possession or distributes any offering material, in all cases at its own expense and may be bound;
(c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
4.3 The Investor has full right, power, authority duly executed and capacity to enter into delivered this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement it constitutes a valid and binding obligation agreement of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ and contracting parties’ parties rights generally and except as enforceability may be subject to general principles of equity or by equitable principles;
(regardless of whether such enforceability is considered in a proceeding in equity or at lawd) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limited.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at which the Placement Agent first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering requisite knowledge and experience in financial and business matters as to any third parties (other than its legal, accounting be capable of evaluating the merits and other advisors) and has not engaged in any purchases or sales risks of the securities of investment in the Company (including, without limitation, any Short Sales (as defined herein) involving Securities and the Company’s securities). The , and the Investor covenants that it will not engage is providing evidence of such knowledge and experience in any purchases or sales of these matters through the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to this Agreement to cover any short position information requested in the Common Stock if doing so would Questionnaires;
(e) all information contained in the Questionnaires is complete and accurate and may be relied upon by the Company;
(f) the Investor is resident in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO the jurisdiction set out under the Exchange Act, whether or not against heading "Name and Address of Investor" on the box, and all types signature page of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” this Agreement;
(as defined in Rule 16a-1(hg) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account Securities for investment purposes only and not with a view to or intent of resale or distribution and, in particular, it has no intention to distribute either directly or indirectly any of the Securities in the United States or to U.S. Persons, other than pursuant to an effective registration statement providing for the resale of the Securities;
(h) the Investor is acquiring the Securities as principal for the Investor’s own account (except for the circumstances outlined in paragraph 6.1(j)), for investment purposes only, and not with a view to, or for, resale, distribution or fractionalisation thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor no other person has no plans to enter into any a direct or indirect beneficial interest in such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.Securities;
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Sources: Securities Purchase Agreement (Cheetah Oil & Gas Ltd.)
Representations, Warranties and Covenants of the Investor. The Investor acknowledges, represents and warrants to, and agrees with, the Company and the Placement Agent Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities shares presenting an investment decision like that involved in the purchase of the Shares and WarrantsShares, including investments in securities issued by the Company and investments in comparable companies, (b) has answered all questions on the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as of the date hereof and will be true and correct as of the Closing Date and (c) in connection with its decision to purchase the number of Shares and Warrants set forth on the Signature Page, has received and is relying only upon the Disclosure Package and Package, the documents incorporated by reference thereintherein and the Offering Information.
4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agent that would permit an offering of the Shares and Warrants, or possession or distribution of offering materials in connection with the issue of the Securities in any jurisdiction outside the United States where action for that purpose is required, (b) if If the Investor is outside the United States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities Shares or has in its possession or distributes any offering material, in all cases at its own expense and (c) the Placement Agent is not authorized to make and has not made any representation, disclosure or use of any information in connection with the issue, placement, purchase and sale of the Shares and Warrants, except as set forth or incorporated by reference in the Base Prospectus, the Prospectus Supplement or any free writing prospectusexpense.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor enforceable against the Investor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and except as to the enforceability of any rights to indemnification or contribution that may be violative of the public policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure Package Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares and Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors and made such investigation as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares and Warrants. The Investor also understands that there is no established public trading market for the Warrants being offered in the Offering, and that the Company does not expect such a market to develop. In addition, the Company does not intend to apply for listing of the Warrants on any securities exchange. The Investor understands that without an active market, the liquidity of the Warrants will be limitedShares.
4.5 The Investor will maintain the confidentiality of all information acquired as a result of the transactions contemplated hereby prior to the public disclosure of that information by the Company in accordance with Section 13 of this Annex.
4.6 Since the time at earlier to occur of (i) the date on which the any Placement Agent first contacted such Investor about the OfferingOffering and (ii) the date that is the tenth (10th) trading day prior to the date of this Agreement, the Investor has not disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and it has not engaged in any purchases or sales of transactions in the securities of the Company (including, without limitation, any Short Sales (as defined herein) involving the Company’s securities). The Each Investor covenants that it will not engage in any purchases or sales of transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. The Each Investor agrees that it will not use any of the Securities Shares acquired pursuant to this Agreement to cover any short position in the Common Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. US broker dealers or foreign regulated brokers.
4.7 The Investor is acquiring the Shares and Warrants (including, upon the exercise of the Warrants, the Warrant Shares) solely for such Investor’s own account for investment purposes only and not with a view to or intent of resale or distribution thereof, in whole or in part. The Investor has no agreement or arrangement, formal or informal, with any person to sell or transfer all or any part of the Shares, the Warrants, or the Warrant Shares, and the Investor has no plans to enter into any such agreement or arrangement.
4.8 The Investor has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Securities and is able to bear the economic risks of such investment.
4.9 The Investor is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the Internet (including, without limitation, internet “blogs,” bulletin boards, discussion groups and social networking sites) in connection with the Offering and sale of the Securities and is not subscribing for the Securities and did not become aware of the Offering through or as a result of any seminar or meeting to which the Investor was invited by, or any solicitation of a subscription by, a person not previously known to the Investor in connection with investments in securities generally.
4.10 The Investor meets the suitability standards set forth in Part B of the Investor Questionnaire attached hereto as Annex II.
4.11 The Investor is aware that the Placement Agent, for the services it is providing in this Offering will receive, with respect to subscriptions made in this Offering through the Placement Agent, (1) a cash compensation equal to 9% of the gross proceeds received by the Company from such subscribers; and (2) a warrant to purchase a number of shares equal to 8% of the Shares issued to such subscribers in the Offering. Other than those commissions payable to the Placement Agent as described herein, the Investor has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
4.12 The Investor acknowledges that the Placement Agent has acted as a placement agent for the Company in previous offerings of its debt and equity securities, and the Placement Agent and its registered representatives received, as compensation for those offerings, warrants to purchase shares of the Company’s common stock, which may give Placement Agent as incentive to sell the Securities to the Investor.
4.13 The Investor is aware that a Managing Partner in the Placement Agent’s New York, NY office, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, entered into a final settlement with the Massachusetts Securities Division in 2001 pursuant to which he agreed, among other things, never to seek to register with the Massachusetts Securities Division in any capacity. The settlement resolved allegations that ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ failed to adequately supervise employees at a prior broker-dealer.
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