Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time. 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. 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 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 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 in Section 7.2(c). 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 (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 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 use any of the 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. 5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares. 5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
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. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and 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 has answered filled in all questions requested information on the Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus (as defined in Exhibit A) forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any 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 acquired pursuant in violation of the Securities Act, nor will Investor engage in any hedging or other transaction which is designed to this Agreement or could reasonably be expected to cover lead to or result in a Disposition of Shares by the Investor or any other person or entity in violation of the Securities Act.
5.6 Between the time such Investor learned about the Offering and the public announcement of the Offering, such Investor has not taken, and prior to the public announcement of the Offering will not take, any action that has caused or will cause such Investor to have, directly or indirectly, sold or agreed to sell any shares of 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 Securities Exchange Act of 1934, as amended) with respect to the 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, 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 of the Company if doing so would be in violation of applicable securities lawsStock.
5.6 5.7 The Investor understands further represents that nothing in the Exchange Act Documentsno broker, the Press Releasesinvestment banker, this Agreement financial advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other materials presented to the Investor similar fee or commission in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in based upon arrangements made by or on behalf of the Stock Purchase Agreement or in the Investor QuestionnaireInvestor.
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. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company and the Placement Agents that:
4.1 The Investor: (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) the Placement Agents are not authorized to make and have not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities, except as set forth or incorporated by reference in the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of Disclosure Package or the Prospectus or pursuant to any free writing prospectus.
(a) The Investor is either an individual or an entity duly organized, validly existing and in compliance with an exemption from such requirement), and good standing under 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 laws of the Prospectus forming a part jurisdiction of the Registration Statement, as set forth in Section 7.2(c).
5.4 The Investor further represents its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits. 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 the Warrants on any securities exchange or other trading market. Without an active market, the liquidity of the Warrants will be limited.
5.7 The Company acknowledges and agrees that 4.5 Since the date on which a Placement Agent first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations information regarding the Offering to any third parties (other than its legal, accounting and other advisors who are bound by agreements or warranties with respect duties of confidentiality) and has not engaged in any purchases or sales involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales involving the securities of the Company (including Short Sales) prior to the time that the transactions contemplated hereby other than those specifically set forth 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 this Sections 5 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-US broker dealers or in the Investor Questionnaireforeign regulated brokers.
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 represents and warrants to, and covenants with, the Company that: (i) 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 investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (ii) the Investor is acquiring the number of Common Shares and Warrants set forth in Section 3 Paragraph III of the Stock Securities Purchase Agreement in the ordinary course of its his business and for its his own account for investment only and with no present intention of distributing any of such Shares the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; and (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, in connection with its his decision to purchase the number of Common Shares and Warrants set forth in Section 3 Paragraph III of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities 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. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 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 (ii) 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 limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is acquiring the Common Shares and Warrants, and the Warrant shares receivable upon exercise thereof, in each case, for his own account and 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 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 hold any of the Investors herein may be legally unenforceableSecurities 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 Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of business.
5.5 The Investor will not use any 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 Shares acquired pursuant Investor set forth herein in order to this Agreement to cover any short position in determine the Common Stock availability of such exemptions and the eligibility of the Company if doing so would be in violation of applicable securities lawsInvestor to acquire the Securities.
5.6 The Investor understands that nothing in the Exchange Act Documentsand his advisors, the Press Releasesif any, this Agreement or any other have been furnished with all publicly available materials presented relating to the Investor in connection with business, finances and operations of the purchase Company and such other publicly available materials relating to the offer and sale of the Shares constitutes legal, tax or investment adviceSecurities as have been requested by the Investor. The Investor has consulted and his advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or his advisors, tax if any, or his 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 his investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), Securities or the fairness or suitability of the investment in the Stock Purchase Agreement Securities, nor have such authorities passed upon or in endorsed the Investor Questionnairemerits of the offering 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. 5.1 The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act Sellers 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 shares Units presenting an investment decision like that involved in the purchase of the SharesUnits, 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 (b) is an informed decision to purchase “accredited investor” within the Shares; (iimeaning of Rule 501(a) 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 Regulation D promulgated under the Securities ActAct of 1933, applicable state securities laws and the respective rules and regulations promulgated thereunder; as amended, (ivc) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vid) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in 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 such Investor to hold the Shares for any period of timePlacement Agency Agreement.
5.2 The Investor acknowledges, represents and agrees that no 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 SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) the Placement Agent is not authorized to make nor has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Units, 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 Section 7.2(c)the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Final Prospectus.
5.4 (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits.
5.7 The Company acknowledges and agrees that 4.5 If the Investor does not make or has previously received any material non-public information since the time at which the Placement Agent first contacted the Investor about the Offering, the Investor has not made disclosed any representations or warranties with respect 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 transactions involving the securities of the Company (including, without limitation, any Short Sales (defined below) 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 hereby other than those specifically set forth herein and (ii) not engage in this Sections 5 and 16(aany purchases or sales of the securities of the Company (including Short Sales), in each case prior to the Stock Purchase time that such material non-public information is publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement or 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.
4.6 Investor Questionnaireacknowledges that a portion of the identifying information set forth on the Signature Page is being requested in connection with the USA Patriot Act, Pub.L.107-56 (the “Patriot Act”), and Investor agrees to provide any additional information requested by the Sellers or the Placement Agent in connection with the Patriot Act or any similar legislation or regulation to which Sellers or the Placement Agent is subject, in a timely manner. Investor hereby represents that the identifying information set forth on the Signature Page, including without limitation, its Taxpayer Identification Number assigned by the Internal Revenue Service or any other taxing authority, is true and complete on the date hereof and will be true and complete at the time of the Closing.
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. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company and the Placement Agent that: :
4.1 The Investor (ia) 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 an “accredited investor” as defined in Regulation D under the Securities Act and the Investor deemed to reside, (b) is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, 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; (iic) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vid) the Investor has, in connection with its decision to purchase the number of Shares Securities set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no 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 SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants 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 Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether Securities, except as set forth or incorporated by delivery of the Prospectus or pursuant to and reference 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 in Section 7.2(c)Prospectus or any free writing prospectus.
5.4 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits. The Investor also understands that there is no established public trading market for the Pre-Funded Warrants or the Warrants, 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.
5.7 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 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) 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 has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the Offering and the merits and risks of investing in the 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 necessary to make an informed investment decision with respect to the investment. The Investor acknowledges and agrees that neither R▇▇▇ nor any affiliate of R▇▇▇ has provided such Investor does not make with any information or has not made any representations or warranties advice with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 Securities nor is such information or advice necessary or desired. Neither R▇▇▇ nor any of its affiliates has made or makes any representation as to the Company or the quality of the Securities and 16(a)R▇▇▇ and any of its affiliate may have acquired non-public information with respect to the Company which such Investor agrees need not be provided to it. In connection with the issuance of the Securities to such Investor, in the Stock Purchase Agreement neither R▇▇▇ nor any of its affiliates has acted as a financial advisor or in the Investor Questionnairefiduciary to such Investor.
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 covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Underwriter that:
4.1 The Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iia) 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 in this Subscription Agreement, including this Annex I and the Investor Questionnaire for use in preparation of the Registration Statement Exhibit A, and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vib) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Subscription Agreement, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Underwriter that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) the Underwriter is not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery of Preliminary Prospectus, 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 in Section 7.2(c)any free writing prospectus.
5.4 4.3 (a) 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 (iib) 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 agreements of or contribution that may violate the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesPreliminary Prospectus, this Agreement the Disclosure Package, the Offering Information, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Subscription Agreement (Aegis Identity Software, Inc.), Subscription Agreement (Aegis Identity Software, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the 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 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 Section paragraph 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares or any and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares 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 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 in paragraph 4 of the 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereinherein and the information contained in the SEC Reports. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of representations made by the Investor’s investment intent as expressed hereinInvestor in this Agreement. Subject to compliance with No person (including without limitation 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agent) is authorized by the Company to provide any representation that would permit an offering of is inconsistent with or in addition to those contained herein or in the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)SEC Reports, 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesuch 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. 5.1 The Investor undersigned 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, and covenants witheach other person that subscribes for the Securities, the Company’s legal counsel and each agent of the Company that: as follows:
(ia) the Investor 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 Securities and Exchange Commission and the of the Company filed with the Securities and Exchange Commission and effective on November 23, 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 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 not relied on any information or representations with respect to the Company or the Offering of the Securities, other than as expressly set forth herein or as set forth in the SEC Documents; the undersigned understands that no person has been authorized to give any information or to make any representations other than those expressly contained herein;
(c) the undersigned is an “accredited investor” as defined in within the meaning of Rule 501(a) of Regulation D under the Securities Act Act; and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified undersigned agrees to make decisions with respect furnish any additional information requested to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 assure compliance with the applicable federal and State Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor Laws in connection with the purchase and sale of the Shares constitutes legalSecurities;
(d) the undersigned represents that he, tax she or investment advice. The Investor it has consulted such legalwith his, tax her or its own tax, investment and investment legal advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby federal, state, local and foreign tax consequences arising from his, her or its purchase of the Securities to the extent the undersigned has determined it necessary to protect his, her or its own interest in connection with a subscription for the 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 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 will receive a return of his, her or its capital or realize a profit on such investor’s investment;
(f) the undersigned has made equity investments in micro-cap companies or is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to 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 or any affiliate of the Company, directly or indirectly, to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters 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 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 than those specifically 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 Sections 5 Subscription Agreement will be deemed to have been reaffirmed and 16(aconfirmed 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.
(s) The undersigned 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 confidence 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 other advisors who shall be advised of the 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 of 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, in the Stock Purchase Agreement or form attached hereto. The information provided by the undersigned in the Purchaser Questionnaire is true and correct and the undersigned understands that the Company is relying upon such information in connection with the 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 been notified by the 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 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 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 Questionnaireor 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 of the foregoing actions; and
(w) The foregoing representations, warranties and agreements, together with all other representations and warranties made or given by the undersigned to the Company in any other written statement or document delivered in connection with the transactions contemplated hereby, shall be true and correct in all respects on and as of the date of the Closing as if made on and as of such date and shall survive such date.
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 hereby represents and warrants to, and covenants with, the Company and the Placement Agents, as of the date hereof and as of the Closing Date (except to the extent made only as of a specified date in which case as of such specified date), that: :
(i1) the 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 and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 an institutional accredited investor) and not with a view to buy, purchase or otherwise acquire or take a pledge ofdistribution and (d) any of aware that hedging transactions involving the Shares except Company’s securities may not be conducted unless in compliance with the Securities Act, applicable state securities laws .
(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 respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation Ordinary Shares issuable upon conversion of the Registration Statement Shares shall not be transferred unless in accordance with the Letter Agreement, that the Shares and the answers thereto are true, correct and complete as Ordinary Shares issuable upon conversion of the date hereof 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 true, correct and complete as of the Closing Date; registered under the Securities Act or any other applicable securities laws and that (va) 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 notify provide the Company immediately and its transfer agent such certificates and other information as they may reasonably require to confirm that any transfer by such Investor of any change 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 such information until such time as the Investor has sold all of its Shares or until the Company is no longer required 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 keep the Registration Statement effective; 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, (vic) has been offered the Investor hasopportunity 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 set forth Shares, and (d) it will not hold the Placement Agents responsible for any statements in Section 3 of or omissions from any publicly available information, including the Stock Purchase Agreement, relied only upon the Company’s Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein. Filings.
(6) The Investor understands that the Company, the Placement Agents and others will rely upon the 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 acquisition purchase 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 thingsis no longer accurate, the bona fide nature Investor shall promptly notify the Company and the Placement 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.
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 Investor’s investment intent information provided as expressed herein. Subject to compliance with part of the Securities Act, applicable securities laws due diligence process and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a make no representation or warranty by such Investor to hold 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 period loss or damages of timeany kind resulting from the use of the information contained therein or otherwise supplied to the Investor.
5.2 5.3. The Investor acknowledges, represents and agrees 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 Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the SharesShares (including any filing of a registration statement), in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The . Neither the Investor hereby covenants with nor any other person acting on its behalf will, directly or indirectly, offer or sell any securities of the Company not same or similar classes as the Shares, or take any other action, so as to make any cause the offer and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to fail to be satisfied (whether by delivery of the Prospectus or pursuant entitled to and in compliance with an exemption from such requirement), and the Investor acknowledges that registration requirements of the certificates evidencing the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithSecurities Act.
5.4. 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 in Section 7.2(c).
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 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 (iias 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 violation of the organizational documents of the Investor, (ii) conflict with, or constitute a default under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Investor is a party, or (iii) result in equity the violation of any law, rule, regulation, order, judgment or at lawdecree (including federal and state securities laws) applicable to the Investor, except in the case of clauses (ii) and except as (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the indemnification agreements aggregate, reasonably be expected to have a material adverse effect on the ability of the Investors herein may be legally unenforceableInvestor to perform its obligations hereunder.
5.5 Investor will not use any of the 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.
5.6 5.6. The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares and has 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 5.7. The Investor represents and warrants that it has all consents, approvals, orders, authorizations, filings in relation to any governmental entity necessary to purchase the Accepted Shares in accordance with the terms of this Agreement.
5.8. The Investor covenants to hold confidential, and not disclose to any third party, the 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 Placement Agents and the Company, except that the Investor may disclose such information (i) to its financial advisors, tax advisors, accountants, attorneys, agents and other representatives, provided that such persons agree to hold confidential such information substantially in accordance with the terms of this 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 Investor shall promptly notify the Company acknowledges and the Placement Agents of any such disclosure). The Investor further agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in none of the Investor Questionnaireand 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.
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. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 attached hereto as Exhibit A and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; , (vc) 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 set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has not been registered Offering Information and (d) is either an “accredited investor” as defined in Rule 501(a) under the Securities Act or registered or a “qualified institutional buyer” as defined in Rule 144A(a) 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each required and (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (a) The Investor hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The 4.5 Since the date on which the Company acknowledges and agrees that first contacted the Investor does not make or about the Offering (the “Initial Date”), the Investor has not made disclosed any representations information regarding the Offering to any third parties (other than its legal, tax and other advisors) and has not engaged in any purchases or warranties with respect to sales involving the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). The Investor covenants that it has not engaged in any purchases or sales involving the securities of the Company (including Short Sales) during the period commencing on the Initial Date and ending at the time that the transactions contemplated hereby other than those specifically set forth by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in this Sections 5 and 16(athe 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 Stock Purchase Agreement Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker-dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 2 contracts
Sources: Subscription Agreement (Tennessee Commerce Bancorp, Inc.), Subscription Agreement (Tennessee Commerce Bancorp, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company Company, the Selling Stockholders and the Placement Agents that:
4.1 The Investor: (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Units and Selling Stockholder Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) the Placement Agents are not authorized to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Securities, 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 Section 7.2(c)the Disclosure Package or the Prospectus Supplements or any free writing prospectus.
5.4 4.3 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectuses, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesSecurities.
5.7 The Company acknowledges and agrees that 4.5 Since the date on which the Placement Agents first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations information regarding the Offering to any third parties (other than its legal, accounting and other advisors who are bound by agreements or warranties with respect duties of confidentiality) and has not engaged in any purchases or sales involving the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities). The Investor covenants that it will not engage in any purchases or sales involving the securities of the Company (including Short Sales) prior to the time that the transactions contemplated hereby other than those specifically set forth 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 this Sections 5 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-US broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 2 contracts
Sources: Subscription Agreement (Coffee Holding Co Inc), Subscription Agreement (Coffee Holding Co Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor hereby represents and warrants to, to and covenants with, with the Company that: Corporation as follows:
(a) The Investor recognizes that an investment in the Corporation involves a high degree of risk. The Investor further recognizes that the Corporation has a very limited financial and operating history.
(b) The Investor has been advised that (i) 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 decisions with respect to investments in shares presenting an there will be no market for investment decision like that involved made in the purchase of the Shares, including investments in securities issued by the Company Corporation 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; (ii) the Investor it may not be possible to readily liquidate this investment.
(c) The Investor's overall commitment to investments which are not readily marketable is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement not disproportionate to its net worth; its investment in the ordinary course Corporation will not cause such overall commitment to become excessive; and it can afford to bear the loss of its business and entire investment.
(d) The Investor has adequate means of providing for its own account current needs and personal contingencies and has no need for liquidity in its investment only and with no present intention of distributing in the Corporation.
(e) The Investor satisfies any of such Shares special suitability 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 requirements of its Shares state or until other jurisdiction of residence and/or 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 set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 state 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expensethe transaction occurs.
5.3 (f) The Investor hereby covenants with has received and reviewed carefully the Company not Term Sheet provided to make any sale of the 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 will be imprinted with a legend that prohibits their transfer except in accordance therewithand all attachments thereto. 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 in Section 7.2(c)the Term Sheet, no representations or warranties have been made to the Investor by the Corporation or any agent, officer, employee or affiliate, and in entering into this transaction the Investor is not relying upon any information other than that contained in such documents and the results of its own independent investigation.
5.4 (g) The Investor further represents has such knowledge and warrants toexperience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Corporation.
(h) The Investor confirms that all documents, records, and covenants with, books pertaining to its proposed investment in the Company that Corporation which it requested to be made available to it have been made so available.
(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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax had an opportunity to ask questions of and investment advisors as it, in its sole discretion, has deemed necessary receive answers from officers or appropriate in connection with its purchase representatives of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in Corporation concerning the Stock Purchase Agreement or in the Investor Questionnaire.terms and
Appears in 2 contracts
Sources: Subscription Agreement (Solutionsamerica Inc), Subscription Agreement (Solutionsamerica Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor hasInvestor, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Company's SEC Documents and the 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 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto as Exhibit B, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use 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 Agreement, including Section 7.2 hereof, and without effectively 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)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 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, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use not, prior to the 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 acquired pursuant to this Agreement to cover 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 in (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 Common Stock of the Company if doing so would be in violation 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 applicable securities lawsits value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
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 Each Investor, severally and not jointly, represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make make, decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesPreferred 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 SharesPreferred Stock; (ii) the Investor is acquiring the number of Shares Preferred Stock set forth in Section 3 of Annex I 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 Preferred Stock or the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesPreferred 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 Shares 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 Investor Questionnaire for use in preparation of the Registration Statement Agreement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete in all material respects as of the Closing Date; (v) the Investor will notify the Company immediately date 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 effectiveeach Closing; and (viv) the Investor has, in connection with its decision to purchase the number of Shares Preferred Stock set forth in Section 3 of Annex I to the Stock Purchase Agreement, relied only upon the Exchange Act DocumentsDocuments (which are incorporated herein by reference and which Investor acknowledges it has reviewed), the Press Releases and the representations and warranties of the Company contained hereinherein and the Disclosure Schedules. The Each Investor understands that its acquisition of the Shares 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. Subject to compliance with Investor understands the Preferred Stock purchased hereunder must be held indefinitely unless there is an effective Registration Statement under the Securities ActAct with respect to the Preferred Stock or an exemption from registration available under the Securities Act and applicable state securities laws, applicable securities laws and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor is able to hold bear the Shares for any period economic risk of timean investment in the Preferred Stock.
5.2 The Investor 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 that would permit an offering of the SharesPreferred Stock, or possession or distribution of offering materials in connection with the issue of the SharesPreferred Stock, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor Each Investor, severally and not jointly, hereby covenants with the Company not to make any sale of the Shares Preferred Stock or the Common Stock underlying the Preferred Stock 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)all securities laws, and the Investor acknowledges that the certificates evidencing the Shares Preferred Stock and the Common Stock underlying the Preferred Stock will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges Upon the earlier of (i) a registration statement covering the Common Stock underlying the Preferred Stock becoming effective and (ii) Rule 144 becoming available, the Investors shall be entitled to exchange their certificates representing the Common Stock for certificates 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 in Section 7.2(c)do not contain any restrictive legend.
5.4 The Investor 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 (iiiii) 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 use any of the Shares restricted Preferred Stock or underlying Common Stock 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.
5.6 The Each Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor Investors in connection with the purchase and sale of the Shares Preferred Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesPreferred Stock.
5.7 The Company acknowledges and agrees that Investor does Except as disclosed in the Disclosure Schedule, the Investors have not make dealt with any broker or has not made any representations or warranties finder in connection with respect to the transactions contemplated hereby by the Agreement, and the Investors have not incurred, 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 transactions contemplated by the Agreement.
5.8 Investor is not purchasing the Preferred Stock as a result of any advertisement, article, notice or other than those specifically set forth communication regarding the Preferred Stock published in this Sections 5 any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.9 Each Investor has independently evaluated the merits of its decision to purchase Preferred Stock, such decision has been independently made by such Investor and 16(a), such Investor confirms that it has only relied on the advice of its own business and/or legal counsel and not on the advice of the Company’s or any other Investor’s business and/or legal counsel in the Stock Purchase Agreement or in the Investor Questionnairemaking such decision.
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 represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 and no arrangement or understanding exists with any other persons 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement (as defined in Section 7.1) and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Offering Materials and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit A hereto, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 Agreement, including Section 7.2 hereof, and without effectively 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)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 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, Statement until such time as set forth in Section 7.2(c)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 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 (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 enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors herein rights to indemnity may be legally unenforceablelimited by state or federal securities laws or public policy underlying such laws.
5.5 Investor will not use any 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 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, 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 the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Purchase Agreement (Hanover Compressor Co /), Purchase Agreement (Hanover Compressor Co /)
Representations, Warranties and Covenants of the Investor. 5.1 To induce the Corporation to accept this subscription, the Investor represents, warrants and covenants as follows:
a) The Investor represents has been furnished and warrants has carefully read the Memorandum relating to the offering of the Shares by the Corporation, 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 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 covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 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 companiesthe Shares and to evaluate the merits and risks of such an investment on the 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 requestedbeen furnished by the Corporation, receivedto the extent commercially reasonable, reviewed and considered during the course of this transaction with all information it deemed relevant in making an informed decision to purchase regarding the Shares; (ii) 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 acquiring such registration contemplated. The Investor understands and agrees further that the number of Shares must be held indefinitely and may be transferred only in accordance with the restrictions set forth in Section 3 of the Stock Purchase Agreement a legend substantially in the ordinary course 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 its business and for its own account holding the Shares for investment only and with no present intention of distributing any dividing or allowing others to participate in this investment or of such Shares reselling or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will nototherwise participating, directly or indirectly, offerin 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, sellthe Investor has been furnished any materials the Investor has requested relating to the Corporation, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any the offering of the Shares except or any statement made in compliance with the Securities ActMemorandum, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all been afforded the opportunity to ask questions on 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 Questionnaire for use in preparation has completed and all of the Registration Statement statements, answers and the answers thereto information therein are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (vdate of the Closing. The Investor Questionnaire is incorporated herein by this reference.
i) the Investor will notify the Company immediately of any change in any of such The foregoing representations, warranties, and covenants and all other information until such time as which the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) provided concerning the Investor has, in connection with its decision to purchase and the number of Shares set forth in Section 3 Investor’s financial condition are true and accurate as of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereindate hereof. The Investor understands that its acquisition agrees to immediately notify the Corporation if any information, representations, warranties, and covenants of the Shares has not been registered under Investor contained in this Subscription Agreement, including the Securities Act Investor Questionnaire, becomes untrue prior to the Closing.
j) The Investor (excluding an Investor who is a director 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 officer 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor Corporation) hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
5.4 The Investor further represents and warrants tothat even though the Investor is a shareholder of the Corporation, and covenants with, the Company that (i) the Investor has full rightno plan, poweragreement, authority and capacity to enter into this Agreement and to consummate arrangement or understanding with 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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement Corporation or any other materials presented to the Investor in connection with the purchase and sale shareholder of the Shares constitutes legalCorporation regarding acquiring, tax holding, voting or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase disposing of Sharescommon stock of the Corporation.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Subscription Agreement (Five Star Bancorp), Subscription Agreement (Five Star Bancorp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, to and covenants with, with the Company that: :
(ia) The Investor, taking into account the Investor personnel and resources it can practically bring to bear on the purchase of the Shares contemplated hereby, 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 investments in shares securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered all information it deemed the Investor knows about and deems relevant (including the SEC Documents) in making an informed decision to purchase the Shares; .
(iib) the The Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase pursuant to 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 or any arrangement or understanding with any other persons Persons regarding the distribution of such Shares; , except in compliance with Section 5.1(c).
(iiic) the 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 securities purchased hereunder except in compliance with the Securities Act, applicable state securities laws blue sky laws, and the respective rules and regulations promulgated thereunder; .
(ivd) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein. The Investor understands that its acquisition is an “accredited investor” within the meaning of the Shares has not been registered Rule 501 of Regulation D promulgated under the Securities Act or registered or qualified a Qualified Institutional Buyer within the meaning of Rule 144A promulgated 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 such Investor to hold the Shares for any period of time.
5.2 (e) The Investor acknowledgeshas all requisite corporate power, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Sharesall requisite corporate action, or possession or distribution of offering materials in connection with the issue of the Sharesto authorize, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws execute and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of deliver this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether by delivery each of the Prospectus or pursuant other agreements and instruments contemplated herein to and in compliance with an exemption from such requirement), and which the Investor acknowledges that the certificates evidencing the Shares will be imprinted with is 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 Statementparty, as set forth in Section 7.2(c).
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 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 (ii) 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 except (ii) as enforceability may be subject limited by equitable principles generally, including any specific performance.
(f) The Investor is not a broker or dealer registered pursuant to general principles Section 15 of equity the Exchange Act (regardless of whether such enforceability is considered in a proceeding in equity or at law“registered broker dealer”) and except as the indemnification agreements is not affiliated with a registered broker dealer. The Investor is not party to any agreement for distribution of the Investors herein may be legally unenforceable.
5.5 Investor will not use any of the Shares acquired pursuant to this Agreement to cover Shares.
5.2 The Investor has not, either directly or indirectly through an affiliate, agent or representative of the Company, engaged in any short position transaction in the Common Stock securities of the Company if doing so would be 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 set forth in violation of applicable securities lawsfilings made with the Commission pursuant to the Exchange Act.
5.6 5.3 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
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 represents and warrants to, and covenants with, the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and 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 has answered filled in all questions requested information on the Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the 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 '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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any 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 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 lawsthe 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 Shares by the Investor or any other person or entity in violation of the Securities Act.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Conceptus Inc), Stock Purchase Agreement (Conceptus Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor hereby represents and warrants to, to and covenants with, with the Company that: Corporation as follows:
(a) The Investor recognizes that an investment in the Corporation involves a high degree of risk. The Investor further recognizes that the Corporation has a very limited financial and operating history.
(b) The Investor has been advised that (i) 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 decisions with respect to investments in shares presenting an there will be no market for investment decision like that involved made in the purchase of the Shares, including investments in securities issued by the Company Corporation 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; (ii) the Investor it may not be possible to readily liquidate this investment.
(c) The Investor's overall commitment to investments which are not readily marketable is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement not disproportionate to its net worth; its investment in the ordinary course Corporation will not cause such overall commitment to become excessive; and it can afford to bear the loss of its business and entire investment.
(d) The Investor has adequate means of providing for its own account current needs and personal contingencies and has no need for liquidity in its investment only and with no present intention of distributing in the Corporation.
(e) The Investor satisfies any of such Shares special suitability 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 requirements of its Shares state or until other jurisdiction of residence and/or 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 set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 state 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expensethe transaction occurs.
5.3 (f) The Investor hereby covenants with has received and reviewed carefully the Company not Term Sheet provided to make any sale of the 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 will be imprinted with a legend that prohibits their transfer except in accordance therewithand all attachments thereto. 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 in Section 7.2(c)the Term Sheet, no representations or warranties have been made to the Investor by the Corporation or any agent, officer, employee or affiliate, and in entering into this transaction the Investor is not relying upon any information other than that contained in such documents and the results of its own independent investigation.
5.4 (g) The Investor further represents has such knowledge and warrants toexperience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Corporation.
(h) The Investor confirms that all documents, records, and covenants with, books pertaining to its proposed investment in the Company that Corporation which it requested to be made available to it have been made so available.
(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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted had an opportunity to ask questions of and receive answers from officers or representatives of the Corporation concerning the terms and conditions of this investment, and all such legal, tax and investment advisors as it, in questions have been answered to its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesfull satisfaction.
5.7 (j) The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in Investment for which the Investor Questionnaire.hereby subscribes will be acquired for its account for investment and not with the view toward resale or
Appears in 2 contracts
Sources: Subscription Agreement (Solutionsamerica Inc), Subscription Agreement (Solutionsamerica Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants tothat it has access to the Company’s base prospectus dated February 13, 2009 and covenants withthe Issuer Free Writing Prospectus dated February 13, 2009, relating to the Offering, (collectively, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of timeProspectus”).
5.2 The Investor acknowledgesInvestor, represents and agrees that no action has been or will be taken in any jurisdiction if outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 5.4 The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesProspectus, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7 The Company acknowledges 5.5 From and agrees that after obtaining the knowledge of the sale of the Securities contemplated hereby, such Investor does not make or has not made taken, and prior to the public announcement of the transaction such Investor shall not take, any representations action that has caused or warranties will cause such Investor to have, directly or indirectly, sold or agreed to sell any 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 Securities Exchange Act) with respect to the transactions contemplated hereby Common Stock, granted any other than those specifically set forth in this Sections 5 and 16(a)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, whether or not, directly or indirectly, in order to hedge it position on the Stock Purchase Agreement or in the Investor QuestionnaireShares.
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. 5.1 (a) The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares securities presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (ii) the Investor is acquiring the number shares of Shares Series B Preferred Stock set forth in Section 3 of on the Stock Purchase Agreement 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 the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 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 Investor Questionnaire signature page hereto for use in preparation of for the Registration Statement (referred to below) and the answers thereto are true, true and correct and complete as to the best of the date hereof and will be true, correct and complete Investors knowledge as of the Closing Date; and (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 Securities or until the Company is no longer required to keep the Registration Statement effective; and .
(vib) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (c) The Investor hereby covenants with the Company not to make any sale of the Shares Securities 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.including
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. 5.1 The Investor represents and warrants to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agents 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 shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act DocumentsDisclosure Package, the Press Releases documents incorporated by reference therein and the 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 such Investor to hold the Shares for any period of timeOffering Information.
5.2 The 4.2 If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor 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 Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (a) The Investor hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that 4.5 Since the date on which any Placement Agent first contacted such Investor does not make or about the Offering, the Investor has not made engaged in any representations transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities), and has not violated its obligations of confidentiality. Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) or warranties with respect 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 hereby other than those specifically set forth by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in this Sections 5 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-US broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 2 contracts
Sources: Placement Agent Agreement (Cytokinetics Inc), Subscription Agreement (Cytokinetics Inc)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 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 Investor Questionnaire attached hereto as Exhibit A (the "Investor Questionnaire") for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 2 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 '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 such 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.
5.2 4.2 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 4.3 The Investor hereby covenants with the Company not to make any sale of the Shares without complying with the provisions of this Agreement and without causing the complying with any prospectus delivery requirement under the Securities Act then applicable to be satisfied (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)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 in Section 7.2(c6.2(c).
5.4 4.4 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 (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 enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors Investor herein may be legally unenforceable.
5.5 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 price of the Common Stock. The 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 lawslaws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6 4.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 4.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Sections 4 and 15(a) of this Sections 5 and 16(a)Agreement, in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Spire Corp), Stock Purchase Agreement (Spire Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) 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 decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesShares 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by such Investor to hold the Shares for any period of timereference therein.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesShares and Warrants, or possession or distribution of offering materials in connection with the issue of the Shares, Securities in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , and (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 4.3 The Investor hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement 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 SharesShares 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.
5.7 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to 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 Company first contacted such Investor about the Offering, the Investor has not disclosed any information regarding the Offering to any third parties (other than those specifically 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. The Investor agrees to make due inquiry regarding, and not to sell or transfer the Shares, the Warrants or the Warrant Shares in violation of, any federal and/or state securities laws applicable to the Investor.
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 ▇▇▇▇▇▇▇ Investment Company, LLC (the “Placement Agent”) has acted as placement agent for the Company in previous offerings of its debt and equity securities, and for services the Placement Agent has provided the Company in past offerings will receive, with respect to certain subscriptions made in this Sections 5 Offering, (a) cash compensation equal to 5%, 9% or 12%, depending on the prior offering in which the Placement Agent introduced the subscriber to the Company, of the gross proceeds received by the Company from certain subscribers that were first introduced to the Company by the Placement Agent in prior offerings and 16(a)(b) a warrant to purchase 9% or 10%, depending on the prior offering in which the Placement Agent introduced the subscriber to the Company, of the number of shares of Common Stock Purchase issued to certain subscribers that were first introduced to the Company by the Placement Agent in prior offerings, which are exercisable for a period of five (5) years from the date of issuance at exercise prices equal to 100% of the purchase price of the shares of Common Stock and related warrants issued in each applicable offering 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 in the Investor Questionnairetransactions contemplated hereby.
Appears in 2 contracts
Sources: 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 covenants agrees 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 shares securities presenting an investment decision like that involved in the purchase of the SharesShares 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares and Warrants set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no 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 SharesShares and Warrants, or possession or distribution of offering materials in connection with the issue of the Shares, Shares and Warrants in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants 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 Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether Securities, except as set forth or incorporated by delivery of the Prospectus or pursuant to and reference 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 in Section 7.2(c)Prospectus or any free writing prospectus.
5.4 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesShares and Warrants. The Investor also understands that there is no established public trading market for the Warrants, 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 exchange or other trading market. The Investor understands that without an active trading market, the liquidity of the Warrants will be limited.
5.7 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to 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 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 those specifically set forth 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 Sections 5 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-U.S. broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 2 contracts
Sources: Subscription Agreement (Moleculin Biotech, Inc.), Subscription Agreement (Moleculin Biotech, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Securities (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; ), (ii) 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; (ivb) 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 Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; Date and (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares Securities set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied only upon any or all of the Exchange Act Documentsfollowing: the Registration Statement, the Press Releases 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 representations and warranties of the Company contained herein. The herein and in the Agency Agreement and the Investor understands that its acquisition of the Shares has not been registered under relied on any other information, if any, provided by 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 Placement Agents to 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 such Investor to hold the Shares for any period of time.
5.2 4.2 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 any Placement Agent that would permit an offering of the Securities (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 legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities (including the Warrant Shares) or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 . The Investor hereby covenants Placement Agents are not authorized to make and has not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Securities (including 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 requirementWarrant Shares), 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 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, the Base Prospectus, the Prospectus Supplement or the Disclosure Package (as set forth defined in Section 7.2(cthe Agency Agreement).
5.4 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities (including the Warrant Shares) constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Securities (including the Warrant Shares).
5.7 The 4.5 Since the date on which the Company acknowledges and agrees that or any Placement Agent first contacted such Investor does not make or about the Offering, Investor has not made engaged in any representations or warranties with respect transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated by this Agreement are publicly disclosed. 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-US broker dealers or foreign regulated brokers.
4.6 The Investor hereby other than those specifically acknowledges that (a) the price of the Securities set forth in this Sections 5 Agreement was established by the Company following discussions and 16(a)arms-length negotiations with the Investors, and the Investor is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; (b) the Placement Agents are not acting as fiduciaries or advisors of the Company or the Investor and (c) the Company’s engagement of the Placement Agents in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. The Investor agrees that it will not claim that the Placement Agents have rendered advisory services of any nature or respect, or owe any fiduciary or similar duty to the Investors, in connection with such transaction or the Stock Purchase Agreement or in the Investor Questionnaireprocess leading thereto.
Appears in 2 contracts
Sources: Placement Agency Agreement (Avi Biopharma Inc), Subscription Agreement (Avi Biopharma Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, companies and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesOffering Materials; (ii) 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 Shares, and no arrangement or understanding exists with any other persons 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, 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 has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement signature page is true and the answers thereto are true, correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 effectiveinformation; and (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein, the Offering Materials and the legal opinion of counsel to the Company and other documents delivered by or 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 '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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an a public offering of the Shares, or possession or distribution of the Offering Materials or any other offering or publicity materials in connection with the issue of relating to the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with 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 to make any sale of the Shares involving a public offering and that under such laws and applicable regulations such securities may be resold without complying with the provisions of this Agreement and without causing the prospectus delivery requirement registration under the Securities Act to be satisfied (whether by delivery of only in certain limited circumstances. In this connection the Prospectus or pursuant to and Investor represents that it is familiar with SEC Rule 144, as presently in compliance with an exemption from such requirement)effect, and understands the Investor acknowledges that resale limitations imposed thereby and by 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 in Section 7.2(c)Securities Act.
5.4 It is understood that the stock certificates for the Shares shall bear a legend in substantially the following form unless and until the 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 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 (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 enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements agreement of the Investors Investor herein may be legally unenforceable.
5.5 Investor will not use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 2 contracts
Sources: Purchase Agreement (Cerus Corp), Purchase Agreement (Cerus Corp)
Representations, Warranties and Covenants of the Investor. 5.1 6.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is either an “accredited investor” as defined in Regulation D under the Securities Act or a non-U.S. person as defined in Regulation S under the Securities Act who is acquiring the Securities in an offshore transaction, and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (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 Shares Securities set forth in Section paragraph 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account and not with a view towards, or for investment only resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act (including pursuant to the Registration Statement (as defined in Section 8.1 below), and has no agreement or understanding, directly or indirectly, with no present intention of distributing any person to distribute any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire and has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete in all material respects as of the Closing 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 Securities 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 Securities set forth in Section paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereinherein and in the Exhibits attached hereto, and written information provided by the Company or its counsel; and (vii) the Investor has reviewed and understood the Company’s Exchange Act Documents; (viii) the Investor has read and understands the risk factors of Weifang Shengtai Pharmaceutical Co., Ltd. (in Exhibit F hereto) and has considered those and other risks in deciding to purchase the Securities and (ix) the Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. The Investor understands that its acquisition of the Shares 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 representations of the Investor, including the bona fide nature of the Investor’s investment intent intent, as expressed contained herein. Subject to compliance with The Investor acknowledges and agrees that a restrictive legend will be included on the Securities Actas follows: THE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, applicable securities laws and the respective rules and regulations promulgated thereunderAS AMENDED (THE “ACT”), nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeAND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHETICATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN ACCORDANCE WITH AN EXEMPTION THEREFROM, IF AVAILABLE, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY AN OPINION OF COUNSEL FOR THE TRANSFEROR REASONABLY SATISFACTORY TO THE COMPANY, PROVIDED THAT NO SUCH OPINION OR ANY CONSENT BY THE COMPANY SHALL BE REQUIRED FOR PLEDGE OF THE SECURITIES PURSUANT TO A BONA FIDE MARGIN OR FINANCING ARRANGEMENT.
5.2 6.2 The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 6.3 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 (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 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 6.4 Investor will not use any not, prior to the effectiveness of the Shares acquired pursuant 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 Securities in violation of the Securities Act. The Investor has not, during the 15 days prior to the date of this Agreement Agreement, directly or indirectly, traded in the Securities or established any hedge or other position in the Securities that is outstanding on the Closing Date and that is designed to cover or expected to lead to or result in a Disposition by the Investor or any other person or entity, 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 Securities by the Investor or any other person or entity in violation of the Securities Act. For purposes of the preceding sentence, “hedging or other transactions” would include without limitation effecting any short sale or having in effect any short position in (whether or not such sale or position is against the Common Stock 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 Securities of the Company if doing so would be in violation 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 applicable securities lawsits value from the Securities.
5.6 6.5 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7 6.6 The Investor represents to the Company that, at all time during the Offering, the Investor has maintained in confidence all material non-public information relating to the Company received by the Investor from the Company or the Placement Agents, and covenants that from the date hereof it will maintain in confidence all material non-public information regarding the Offering and the Corporate Presentation received by the Investor from the Company or the Placement Agents until such information (a) is disclosed by the Company pursuant to Section 10 below or otherwise, (b) becomes generally publicly available other than through a violation of this provision by the Investor or its agents, or (c) is required to be disclosed in legal, regulatory or administrative proceedings or similar process; provided, however, that before making any disclosure in reliance on this Section 6.6, the Investor will give the Company at least fifteen (15) days prior written notice ( or such shorter period as may be required by law) specifying the circumstances giving rise thereto and will furnish only that portion of the non-public information which is legally required and will exercise its commercially reasonable efforts to ensure that confidential treatment will be accorded any non-public information so furnished.
6.7 The Investor acknowledges that it has independently evaluated the merits of the transaction contemplated by this Agreement, that it has independently determined to enter into the transaction contemplated hereby, that it is not relying on any advice from or evaluation by any Other Investor, and that it is not acting in concert with any Other Investor in making its purchase of the Securities hereunder. The Investor acknowledges that the Investors have not taken any actions that would deem the Investors to be members of a “group” for purposes of Section 13(d) of the Exchange Act.
6.8 The Investor agrees that Investor does not make or has not made any representations or warranties to comply with the requirements of Regulation M, if applicable, with respect to the transactions contemplated sale of the Securities by the Investor. The Investor hereby other than those specifically set forth in this Sections 5 confirms its understanding that it may not cover short sales made prior to the effective date of the Registration Statement with Securities registered for resale thereon. The Investor acknowledges that it does not intend to cover short positions made by it before the effective date with Securities held by it and 16(a), in registered on the Stock Purchase Agreement or in the Investor QuestionnaireRegistration Statement.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 (a) The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesStock, 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 SharesStock; (ii) the Investor is acquiring the number of Shares shares of Stock set forth in Section 3 of on the Stock Purchase Agreement 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 shares of Stock or any arrangement or understanding with any other persons regarding the distribution of such Sharesshares 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 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 Investor Questionnaire signature page hereto for use in preparation of for the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 shares of Stock 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 shares of Stock set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
5.2 (b) 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 wofering of the Sharesshares of Stock, or possession or distribution of offering materials in connection with the issue of the Sharesshares of Stock, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares shares of Stock or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the shares of Stock other than as contained in the Placement Memorandum.
5.3 (c) The Investor hereby covenants with the Company not to make any sale of the Shares shares of Stock without complying with the provisions of this Agreement agreement, including Section 7.2 hereof, and without effectively 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 therewithsatisfied. The Investor acknowledges that there may occasionally be times when the Company Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)an amendment to the Registration Statement has been filed by the Company and declared effective by the Commission or until the Company has amended or supplemented such prospectus.
5.4 (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 (ii) 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.
5.5 (e) Investor will not use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in 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 if doing so by the Investor or any other person or entity. Such prohibited hedging or other transactions would be include without limitation effecting any short sale or having in violation effect any short position (whether or not such sale or position is against the box and regardless of applicable securities lawswhen 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 Common stock of the Company 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.
5.6 (f) The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesPlacement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Stock constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesStock.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alexion Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is a "qualified institutional buyer" or 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases SEC Filings and the representations and warranties of the Company contained hereinherein and (vii) the Investor is not a registered broker-dealer or engaged in the business of a broker-dealer. 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto as Exhibit A, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials SEC Filings in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)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 in Section 7.2(c).
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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, if then prohibited by law or regulation, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any right with respect to (collectively, a "Disposition"), the Common Stock, nor will the 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 by the Investor or any person or entity. Such prohibited hedging or other transaction would include, without limitation, effecting any short sale or having in effect a short position in (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 Common Stock or with respect to any security (other than a broad-based market basket or index) that includes, relates or derived any significant part of its value from the Common Stock of the Company if doing so would be in violation of applicable securities lawsCompany.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesSEC Filings, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Therapeutics Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement this Subscription Agreement, including this Annex I and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vib) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Subscription Agreement, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , and (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (a) The Investor hereby covenants with is not a Canadian resident or otherwise subject to Canadian securities laws; (b) the Company Shares (i) have not been qualified for distribution by prospectus in Canada, and (ii) may not be offered or sold in Canada during the course of their distribution except pursuant to make any sale a Canadian prospectus or prospectus exemption; (c) no Canadian securities authority has reviewed or passed merit on the distribution of the Shares without complying with Shares; and (d) the provisions purchase 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 will be imprinted deemed to constitute a representation and warranty by the Investor that such Investor is purchasing the Shares with investment intent and not with a legend view to distribution, and that prohibits their transfer except such representation and warranty is reasonable in accordance therewith. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend circumstance, having regard to the use nature of the Prospectus forming purchaser, the number of Shares purchased, the purchaser’s investment strategy, and any other facts or circumstances that a part of the Registration Statement, as set forth reasonable person would consider relevant in Section 7.2(c)determining whether a purchaser is purchasing with investment intent and not with a view to distribution.
5.4 (a) 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 (iib) 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 agreements of or contribution that may violate the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.5 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesDisclosure Package, this Agreement the Offering Information, the Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Subscription Agreement (Green Thumb Industries Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
(ia) It has had the Investor is an “accredited investor” as defined in Regulation D under opportunity to review the Securities Act Subscription Agreement (including all exhibits and schedules thereto) and the Investor is also knowledgeable, sophisticated Company’s filings with the Commission and experienced in makinghas been afforded the opportunity to ask such questions as it has deemed necessary of, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Sharesreceive answers from, 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; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties representatives of the Company contained herein. The Investor understands that its acquisition concerning the terms and conditions 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with .
(i) If the issue of the Shares, in any jurisdiction Investor is outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (ii) no agent of the Company has been authorized to make and no such agent has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Shares, 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 in Section 7.2(c)or incorporated by reference in the Base Prospectus or the Prospectus Supplement or as otherwise contemplated by this Subscription Agreement.
5.4 The Investor further represents and warrants to, and covenants with, the Company that (c) (i) the 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.
(d) The Shares to be purchased by the Investor hereunder will be acquired for the Investor’s own account, not as nominee or agent, and (ii) this Agreement constitutes not with a valid and binding obligation view to the resale or distribution of any part thereof in violation of the Investor enforceable against Securities Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same 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 violation of the Investors herein may be legally unenforceable.
5.5 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 Shares in compliance with applicable federal and state securities laws. If the Investor will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Common Stock is an affiliate of the Company if doing so would (within the meaning of Rule 144 promulgated under the Securities Act), the Investor acknowledges and understands that the Shares may not be in violation 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 applicable securities lawsthe Securities Act.
5.6 The Investor understands that nothing (e) Nothing in the Exchange Act Documentsthis Subscription Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 (f) Since the time of the initial conversation between the Company and the Investor regarding 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) or engaged in any transactions in the securities of the Company (including, without limitations, any short sales (as defined in 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 engage in any transactions in the securities of the Company acknowledges and agrees (including short sales) prior to the time that the transactions contemplated by this Subscription Agreement are publicly disclosed.
(g) The Investor’s signature page sets forth all securities of the Company held or beneficially owned by such Investor as of the date hereof. Such Investor does not make hold or has not made beneficially own any representations or warranties with respect to other securities of the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a)Company, in except as indicated on the Stock Purchase Agreement or in the Investor Questionnairesignature page hereto.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 To induce the Corporation to accept this subscription, the Investor represents, warrants and covenants as follows:
a) The Investor represents has been furnished and warrants has carefully read the Memorandum relating to the offering of the Shares by the Corporation, 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 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 covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 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 companiesthe Shares and to evaluate the merits and risks of such an investment on the 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 requestedbeen furnished by the Corporation, receivedto the extent commercially reasonable, reviewed and considered during the course of this transaction with all information it deemed relevant in making an informed decision to purchase regarding the Shares; (ii) 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 acquiring such registration contemplated. The Investor understands and agrees further that the number of Shares must be held indefinitely and may be transferred only in accordance with the restrictions set forth in Section 3 of the Stock Purchase Agreement a legend substantially in the ordinary course 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 EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED, NOR WILL ANY ASSIGNEE OR ENDORSEE HEREOF BE RECOGNIZED AS AN OWNER HEREOF BY THE ISSUER FOR ANY PURPOSE, UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO SUCH SHARES SHALL THEN BE IN EFFECT OR UNLESS THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION WITH RESPECT TO ANY PROPOSED TRANSFER OR DISPOSITION OF SUCH SHARES SHALL BE ESTABLISHED TO THE SATISFACTION OF COUNSEL FOR THE ISSUER. 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. FIVE STAR BANCORP WILL NOT EFFECTUATE TRANSFERS OF STOCK EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH AGREEMENT. COPIES OF THE AFORESAID STOCKHOLDERS AGREEMENT MAY BE OBTAINED FROM FIVE STAR BANCORP.
f) The Investor is purchasing the Shares for the Investor’s own account, with the intention of its business and for its own account holding the Shares for investment only and with no present intention of distributing any dividing or allowing others to participate in this investment or of such Shares reselling or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will nototherwise participating, directly or indirectly, offerin 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, sellthe Investor has been furnished any materials the Investor has requested relating to the Corporation, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any the offering of the Shares except or any statement made in compliance with the Securities ActMemorandum, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all been afforded the opportunity to ask questions on 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 Questionnaire for use in preparation has completed and all of the Registration Statement statements, answers and the answers thereto information therein are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (vdate of the Closing. The Investor Questionnaire is incorporated herein by this reference.
i) the Investor will notify the Company immediately of any change in any of such The foregoing representations, warranties, and covenants and all other information until such time as which the Investor has sold all of its Shares or until the Company is no longer required to keep the Registration Statement effective; and (vi) provided concerning the Investor has, in connection with its decision to purchase and the number of Shares set forth in Section 3 Investor’s financial condition are true and accurate as of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereindate hereof. The Investor understands that its acquisition agrees to immediately notify the Corporation if any information, representations, warranties, and covenants of the Shares has not been registered under Investor contained in this Subscription Agreement, including the Securities Act Investor Questionnaire, becomes untrue prior to the Closing.
j) The Investor (excluding an Investor who is a director 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 officer 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor Corporation) hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
5.4 The Investor further represents and warrants tothat even though the Investor is a shareholder of the Corporation, and covenants with, the Company that (i) the Investor has full rightno plan, poweragreement, authority and capacity to enter into this Agreement and to consummate arrangement or understanding with 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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement Corporation or any other materials presented to the Investor in connection with the purchase and sale shareholder of the Shares constitutes legalCorporation regarding acquiring, tax holding, voting or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase disposing of Sharescommon stock of the Corporation.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the 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 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 Section paragraph 3 of the Stock Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares or any and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares 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 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 in paragraph 4 of the 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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; (vi) the Investor is not a "dealer" within the meaning of the Securities Act or a "broker" or "dealer" within the meaning of the Exchange Act; and (vivii) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereinherein and the information contained in the SEC Reports. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of representations made by the Investor’s investment intent as expressed hereinInvestor in this Agreement. Subject to compliance with No person (including without limitation 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agents) is authorized by the Company to provide any representation that would permit an offering of is inconsistent with or in addition to those contained herein or in the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)SEC Reports, 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesuch representations.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and 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 of 1933, as amended (the “Securities Act”) OR is a “Qualified Institutional Buyer” within the meaning of Rule 144A of the Act and, in any such case the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the SharesInvestor’s Units, 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 SharesInvestor’s Units; (ii) the Investor is acquiring the number of Investor’s Units, Shares set forth in Section 3 of the Stock Purchase Agreement and Warrants 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 Investor’s Units, Shares and Warrants or any arrangement or understanding with any other persons regarding the distribution of such SharesInvestor’s Units, Shares and Warrants; (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 Investor’s Units, Shares and Warrants except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder, except that the Investor may pledge the Shares in connection with a bona fide margin account or other loan or financing; (iv) the Investor has answered all questions on and the Investor Questionnaire Investor’s representatives, if any, have been solely responsible for use in preparation the Investor’s own “due diligence” investigation of the Registration Statement Company and the answers thereto are trueits management and business, correct and complete as for its own analysis of the date hereof merits and will be truerisks of this investment, correct and complete as for the Investor’s own analysis of the Closing Date; (v) fairness and desirability of the Investor will notify terms of 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 effectiveinvestment; and (viv) the Investor has, in connection with its decision to purchase the number of Investor’s Units, Shares set forth in Section 3 of the Stock Purchase Agreementand Warrants, relied only upon the Exchange Act DocumentsCompany’s Confidential Private Offering Memorandum dated September 28, 2006 (the Press Releases “Memorandum”) and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares and 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 4.2 The Investor hereby covenants with the Company not to make any sale of the Investor’s Units, Shares and Warrants 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)Agreement, and the Investor acknowledges that the certificates evidencing the Shares 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 determines that it must suspend the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
5.4 4.3 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 (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 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 use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, 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 as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Shares and Warrants.
5.7 4.5 The Investor hereby acknowledges that it has received, read and understands the Memorandum. Without limiting the generality of the foregoing, Investor understands and acknowledges that there are substantial risks incident to the investment in and ownership of the Units, Shares and Warrants including, without limitation, each of the matters discussed in the Memorandum under the heading “Risk Factors.”
4.6 Investor and Investor’s representatives, if any, have had a reasonable opportunity to ask questions of and receive answers from the management of the Company, or a person or persons acting on behalf of the Company, concerning the Company acknowledges and agrees that its proposed activities and business, the Company’s capitalization, the Company’s management, and the offering and sale of the Units, and otherwise to investigate the Company’s business, operations, management, financial condition and prospects. Investor does has adequate means of providing for Investor’s current needs and possible personal contingencies, has no need for liquidity in this investment and could afford to lose the entire amount of this investment. Investor’s commitment to all investments and investments, which are not make readily marketable, is reasonable in relation to Investor’s net worth and an investment in the Units will not cause Investor’s overall commitment to be excessive. Investor is acquiring the Units for Investor’s own account, as a principal, without a view to the resale or distribution of all or any part of the Units and has no present intention, agreement or arrangement to divide Investor’s participation with others or to resell, assign, transfer or otherwise dispose of all or any part of the Units for which Investor has subscribed. If Investor is a corporation, partnership, limited liability company, trust or other entity, it is authorized and otherwise duly qualified to purchase and hold a membership interest in the Company and has not made any representations or warranties with respect to been formed for the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairespecific purpose of acquiring Units.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor has reviewed the Company’s public filings with the SEC; (ii) the Investor has had an opportunity to ask the Company’s representatives questions regarding the offering and receive answers from the Company; (iii) the Investor has been afforded an opportunity to request from the Company, and to review, all additional information the Investor considered to be necessary to make an informed investment decision with respect to the Shares; (iv) the Investor is an institutional “accredited investor” (as defined in Rule 501(a) (1), (2), (3), or (7) of Regulation D under the Securities Act Act), a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) and the Investor is also knowledgeable, sophisticated and experienced in making, making and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the 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 Shares; (iiv) by reason of the Investor’s business or financial experience, the Investor is capable of evaluating the merits and risks of an investment in the Shares and of protecting the Investor’s own interests in connection with the transaction; (vi) the Investor has adequate means to provide for the Investor’s financial needs with no expectation of a return on the Investor’s investment, including a complete loss of the investment; (vii) the Investor understands that the Shares have not been registered under the Securities Act and may not be resold unless they are so registered or unless an exemption from registration is available; (viii) the Investor is acquiring the number of Shares set forth in Section 3 of for the Stock Purchase Agreement in the ordinary course of its business and for its Investor’s own account account, for investment only and not with no present intention a view toward their distribution within the meaning of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities Act; (iiiix) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 enforceability is considered in a proceeding in equity or at law) and except as the indemnification agreements of the Investors Investor herein may be legally unenforceable.
5.5 5.3 The Investor will hereby covenants with the Company not use to make any sale of the Shares acquired 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 (as defined in Section 7.1) forming a part of the Registration Statement (as defined in Section 7.1) 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 will not, prior to the effectiveness of the Registration Statement, except pursuant to a valid exemption from registration and in compliance with Section 7.2(a)(i) of this Agreement Agreement, sell, offer to cover sell, solicit offers to buy, dispose of, loan, pledge or grant any right with respect to (collectively, a “Disposition”), the Shares, nor will the 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 in (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 if doing so would be in violation of applicable securities lawsCompany.
5.6 5.5 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.6 The Investor acknowledges and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of Shares in any jurisdiction outside the United States where action for that purpose is required. The Investor will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.7 The Company Investor acknowledges that it understands its obligation to comply with the provisions of the Exchange Act and agrees that Investor does not make the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or has not made any representations successor rules or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(aregulations), in connection with any offering of Shares pursuant to the Stock Purchase Agreement or Registration Statement. The Investor agrees that neither it nor any person acting on its behalf will engage in the Investor Questionnaireany transaction in violation of such provisions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tivo Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) either (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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares or (B) 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 to obtain any additional information relating to the financial condition and business of the Company and the Investor, either alone or with its purchaser representative, 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; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases 2003 Draft Financial Statements and the 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 '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 such Investor to hold the Shares for any period of time. 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 acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 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 lawslaws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases2003 Draft financial Statements, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisers as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a)) of this Agreement, in the Stock Purchase Agreement or in the Investor Questionnaire.
5.8 The Investor acknowledges that in connection with the materials it received in this Offering that it has been provided draft financial statements as of December 31, 2003 of the Company which are not public information. These financial statements are agreed to be non-public confidential information, subject to Section 16 of this Agreement.
5.9 Investor agrees not to acquire any publicly traded securities of the Company until the later of disclosure by the Company of its December 31, 2003 financial statements and the closing of this Offering.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vitacube Systems Holdings Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire for use in preparation of the Registration Statement (as defined in Section 7.1(c) hereof) and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases and the 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 Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire(s) attached hereto, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 Agreement, including the provisions of Section 7.2 hereof, and without effectively 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)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 in Section 7.2(c).
5.4 5.3 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 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 (ii) 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 the indemnification agreements of the Investors Investor herein may be legally unenforceable.
5.5 5.4 Investor will not use any of the restricted Shares acquired pursuant to this Agreement to cover any short position in the Company Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.6 5.5 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents hereby represents, warrants and warrants tocovenants that:
3.1 The Investor understands and accepts that the Exchange for the Exchange Securities involves various risks, including without limitation the risks outlined in the Form C filed by the Company with the SEC on June 13, 2019, the Form C-AR filed by the Company with the SEC on April 29, 2020, and covenants withthe Form C-AR filed by the Company with the SEC on May 13, 2021 (the “Form C”), and in this Agreement. The Investor can bear the economic risk of this investment and can afford a complete loss thereof; and the undersigned has adequate means of providing for its current needs and possible contingencies and has no present need for liquidity of the undersigned’s investment in the Company. THE INVESTOR UNDERSTANDS THAT ITS PARTICIPATION IN THE EXCHANGE AND RECEIPT OF THE EXCHANGE SECURITIES MAY ENTITLE IT TO A CASH PAYMENT WHICH WOULD BE LESS THAN ANY CASH PAYMENT TO WHICH IT MAY HAVE BEEN ENTITLED AS A HOLDER OF THE SAFE.
3.2 The Investor acknowledges that at no time has it been expressly or implicitly represented, guaranteed or warranted to the Investor by the Company or any other person that a percentage of profit and/or amount or type of gain or other consideration will be realized because of its receipt of the Exchange Securities.
3.3 Including the Purchase Amount set forth on the signature page hereto, in the past 12 month period, the undersigned has not exceeded the investment limit as set forth in Rule 100(a)(2) of Regulation Crowdfunding.
3.4 The undersigned has received and reviewed a copy of the Form C. With respect to information provided by the Company, the undersigned has relied solely on the information contained in the Form C and the Certificate of Incorporation to make the decision to participate in the Exchange.
3.5 The undersigned confirms that it is not relying and will not rely on any communication (written or oral) of the Company, the Portal, or any of their respective affiliates, as investment advice or as a recommendation to participate in the Exchange. It is understood that information and explanations related to the terms and conditions of the Exchange Securities provided in the Form C and the Certificate of Incorporation or otherwise by the Company, the Portal or any of their respective affiliates shall not be considered investment advice or a recommendation to participate in the Exchange, and that neither the Company, the Portal nor any of their respective affiliates is acting or has acted as an advisor to the undersigned in deciding to participate in the Exchange. The undersigned acknowledges that neither the Company, the Portal nor any of their respective affiliates have made any representation regarding the proper characterization of the Exchange Securities for purposes of determining the undersigned's authority or suitability to invest in the Exchange Securities.
3.6 The undersigned is familiar with the business and financial condition and operations of the Company, all as generally described in the Form C. The undersigned has had access to such information concerning the Company and the Exchange Securities as it deems necessary to enable it to make an informed investment decision concerning its participation in the Exchange.
3.7 The undersigned understands that: , unless the undersigned notifies the Company in writing to the contrary at or before the Closing, each of the undersigned's representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the undersigned.
3.8 The undersigned acknowledges that the Company has the right in its sole and absolute discretion to abandon this Exchange at any time prior to the completion of the Exchange. This Agreement shall thereafter have no force or effect and the Company shall return the SAFE, to the undersigned.
3.9 The undersigned understands that no federal or state agency has passed upon the merits or risks of an investment in the Exchange Securities or made any finding or determination concerning the fairness or advisability of this investment.
3.10 The Exchange Prices have been calculated as set forth on Exhibit B (the “Exchange Price Calculation”). The undersigned acknowledges and agrees with the Exchange Price and the Exchange Price Calculation as the valid basis for the number of Exchange Securities it will receive in the Exchange.
3.11 The undersigned confirms that the Company has not (i) given any guarantee or representation as to the Investor is potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) an “accredited investor” as defined of investment in Regulation D under the Exchange Securities Act and or (ii) made any representation to the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting undersigned regarding the legality of an investment decision like that involved in the purchase Exchange Securities under applicable legal investment or similar laws or regulations. In deciding to participate in the Exchange, the undersigned is not relying on the advice or recommendations of the Shares, including investments in securities issued by the Company and investments the undersigned has made its own independent decision, alone or in comparable companiesconsultation with its investment advisors, that the investment in the Exchange Securities is suitable and appropriate for the undersigned.
3.12 The undersigned has requestedsuch knowledge, receivedskill and experience in business, reviewed financial and investment matters that the undersigned is capable of evaluating the merits and risks of its participation in the Exchange. With the assistance of the undersigned's own professional advisors, to the extent that the undersigned has deemed appropriate, the undersigned has made its own legal, tax, accounting and financial evaluation of the merits and risks of participation in the Exchange and the consequences of this Agreement. The undersigned has considered all information it deemed relevant the suitability of the Exchange Securities as an investment in making light of its own circumstances and financial condition and the undersigned is able to bear the risks associated with an informed decision investment in the Exchange Securities and its authority to purchase invest in the Shares; (ii) the Investor Exchange Securities.
3.13 The undersigned is acquiring the number of Shares set forth Exchange Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with a view to, or for resale in Section 3 connection with, any distribution 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon Exchange Securities. The undersigned understands that the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares has Securities have not been registered under the Securities Act or registered or qualified under any state securities law in reliance on laws by reason of specific exemptions therefrom, under the provisions thereof which exemptions may depend upon, among other things, in part upon the bona fide nature investment intent of the Investor’s investment intent as expressed hereinundersigned and of the other representations made by the undersigned in this Agreement. Subject The undersigned understands that the Company is relying upon the representations and agreements contained in this Agreement (and any supplemental information) for the purpose of determining whether this transaction meets the requirements for such exemptions.
3.14 The undersigned understands that the Exchange Securities are restricted from transfer for a period of time under applicable federal securities laws and that the Securities Act and the rules of the SEC provide in substance that the undersigned may dispose of the Exchange Securities only pursuant to compliance with an effective registration statement under the Securities Act, applicable securities laws an exemption therefrom, after which certain state restrictions may apply. The undersigned understands that the Company has no obligation or intention to register any of the Exchange Securities, or to take action so as to permit sales pursuant to the Securities Act. Even if and when the respective rules and regulations promulgated thereunderExchange Securities become freely transferable, nothing contained herein shall be deemed a representation or warranty by such Investor to hold secondary market in the Shares Exchange Securities may not develop. Consequently, the undersigned understands that the undersigned must bear the economic risks of the investment in the Exchange Securities for any an indefinite period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Exchange Agreement
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agents 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 shares presenting an investment decision like that involved in the purchase of the SharesUnits, 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; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in 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 such Investor to hold the Shares for any period of timePlacement Agreement.
5.2 The Investor acknowledges, represents and agrees that no 4.2 No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Units, 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 Section 7.2(c)the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement.
5.4 4.3 The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits.
5.7 The Company acknowledges and agrees that 4.5 Since the time at which a Placement Agent first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations or warranties with respect information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales 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 hereby other than those specifically set forth herein and (ii) not engage in this Sections 5 and 16(aany purchases or sales of the securities of the Company (including Short Sales), in each case prior to the Stock Purchase time that the transactions contemplated by this Agreement or are publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement to cover any short position in the Investor QuestionnaireCommon 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-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Sources: Subscription Agreement (Magnum Hunter Resources Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company and the Current Stockholder that: (i) the Investor is an “institutional "accredited investor” " as defined in Regulation D 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 investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire hereto for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company and the Current Stockholder 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit B to the Exchange Act Documents, applicable securities laws which questionnaire is true, correct 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 timecomplete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)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 in Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, 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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor Investor, severally and not jointly, represents and warrants to, and covenants with, to the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies, and has requested, received, reviewed had the opportunity to request and considered review all information it deemed relevant in making an informed decision to purchase the Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and 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 or 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 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 has filled 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 requested information on the Investor 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; and (viv) the Investor will notify the Company immediately promptly of any material change in any of such information in the Questionnaire 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 set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 '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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and Agreement, including Section 7.2 hereof and, without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied satisfied, if applicable (whether by unless the Investor is selling such Shares in a transaction not subject to the prospectus 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus prospectus forming a part of the Registration Statement, Statement (the "Prospectus") until such time as set forth in Section 7.2(c)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 5.3 The Investor Investor, severally and not jointly, further represents and warrants to, and covenants with, 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 (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 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 use any of the 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.
5.6 5.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 6.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase 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 not entered into any arrangement or understanding with any other persons regarding the distribution of such Shares; (iiiv) 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; (ivvi) the Investor has answered all questions on shall furnish to the Company such information regarding such Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete distribution proposed by such Investor as of the date hereof and will be true, correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately of may reasonably request in writing and as shall be reasonably required in connection with 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 effectiveU.S. Registration; and (vivii) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, this Agreement relied only upon the Exchange Act Documents, the Press Releases ASX Documents and the 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 applicable 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 such Investor to hold the Shares for any period of timetime 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.
5.2 6.2 The Investor acknowledgesshall not offer, represents and agrees that no action has been sell, contract to sell or will be taken in otherwise dispose of or deliver any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials Shares unless: (i) the Shares are sold on the ASX in connection compliance with the issue Regulation S of the Shares, 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 legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations of the states of the United States governing the offer and sale of securities and, (iii) prior to and as a condition to the execution of the offer, sale or delivery described in each foreign jurisdiction in which it purchasessubclauses (i) and (ii) above, offerssuch Investor has furnished to the Company an opinion of counsel satisfactory to the Company to such effect, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expenseunless the Company waives receipt of such opinion.
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 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 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 in Section 7.2(c).
5.4 6.3 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 (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 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 6.4 The Investor has not engaged in any short sales or similar transactions with respect to the Company’s capital stock, nor has the Investor, directly or indirectly, caused any person to engage in any short sales or similar transactions with respect to the Company’s capital stock. Without limiting the foregoing, Investor will not use any of the Shares acquired pursuant to this Agreement the Agreements to cover any short position in the Common Stock capital stock of the Company if doing so would be in violation of applicable securities lawslaws and Investor will otherwise comply with federal securities laws of the United States in the holding and resale of the Shares.
5.6 6.5 The Investor understands that nothing in the Exchange Act ASX Documents, the Press ReleasesAgreements, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 6.6 The Company Investor acknowledges that, if it has material non-public information regarding the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions may apply to it. The Investor agrees not to, and agrees not to cause any other person to, acquire (as that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), term is defined in the Stock Purchase Agreement or in ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Cth)) any of the Investor QuestionnaireCompany’s securities after it has had access to material non-public information if doing so would be a breach of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ restrictions.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, Company Information provided to the Press Releases Investor by the Company in contemplation of this offering and the 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 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto Exhibit B, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use 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 Agreement, including Section 7.2 hereof, and without effectively 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)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 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, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover 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 in (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 Common Stock of the Company if doing so would be in violation 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 applicable securities lawsits value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 and no arrangement or understanding exists with any other persons 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement (as defined in Section 7.1) and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Placement Memorandum and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with the Securities Act, applicable securities laws be completed and the respective rules and regulations promulgated thereunder, nothing contained herein shall be deemed a representation or warranty by such Investor delivered to hold the Shares for any period of time.
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 that would permit an offering of the SharesInvestor Questionnaire attached as Exhibit E to the Placement Memorandum, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose which questionnaire is required. Each Investor outside the United States will comply with all applicable laws true and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, correct in all cases at its own expensematerial respects.
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 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 (a) The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, the Warrants and the Warrant Shares (the “Securities”), 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 SharesSecurities; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement Securities 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 the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 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 Investor Questionnaire signature page hereto for use in preparation of for the Registration Statement (as that term is defined below) and the answers thereto are true, true and correct and complete as of the date hereof and will be true, correct and complete as of the Closing Datehereof; (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, Warrants 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 set forth in Section 3 of the Stock Purchase AgreementSecurities, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
5.2 (b) 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 any other person or entity that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each The Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares the Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (c) The Investor hereby covenants with the Company not to make any sale of the Shares Securities without complying with the provisions of this Agreement Agreement, including Section 7.2 hereof, and without effectively 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 therewithsatisfied. The Investor acknowledges that there may occasionally be times when the Company Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)an amendment to the Registration Statement has been filed by the Company and declared effective by the Securities and Exchange Commission the (“Commission”) or until the Company has amended or supplemented such prospectus.
5.4 (d) The Investor further represents and warrants to, and covenants with, 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, and (ii) 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.
5.5 (e) The Investor will not use any of and its advisors, if any, have been furnished with all materials relating to the Shares acquired pursuant to this Agreement to cover any short position in the Common Stock business, finances and operations of the Company and other information the Investor deemed material to making an informed investment decision regarding its purchase of the Securities, which have been requested by the Investor. The Investor and its advisors, if doing so would be any, have been afforded the opportunity to ask questions of the Company and its management. The Investor understands that its investment in violation the Securities involves a high degree of applicable securities lawsrisk. The Investor is in a position regarding the Company, which, based upon business relationship or economic bargaining power, enabled and enables the Investor to obtain information from the Company in order to evaluate the merits and risks of its investment. The Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Without limiting the foregoing, 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 a speculative investment that involves a high degree of risk of loss of the Investor’s entire investment. Among other things, the Investor has carefully considered each of the risks described under the heading “Risk Factors” in the Company’s Form 10-K filed with the Commission on April 2, 2018, available on the Commission’s ▇▇▇▇▇ website at ▇▇▇.▇▇▇.▇▇▇.
5.6 (f) The Investor understands that no United States federal or state governmental authority has passed on or made any recommendation or endorsement of the Securities, or the fairness or suitability of the investment in the Securities, nor have such governmental authorities passed upon or endorsed the merits of the offering of the Securities.
(g) The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. The Investor represents that it has a business relationship with the Company preceding its decision to purchase the Securities from the Company.
(h) The Investor acknowledges that the Warrants are not listed or quoted for trading on any market, exchange or quotation service and agrees that the Company has no obligation to list or quote the Warrants for trading.
(i) The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Securities Purchase Agreement (Milestone Scientific Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) either (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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares or (B) 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 to obtain any additional information relating to the financial condition and business of the Company and the Investor, either alone or with Wellington Management Company, LLP as its purchaser representative, 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; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 '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 such Investor to hold the Shares for any period of time. 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 acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 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 lawslaws and otherwise will comply with federal securities laws in the holding and sale of the Shares.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a)) of this Agreement, in the Stock Purchase Agreement or in the Investor Questionnaire.
5.8 The Investor hereby acknowledges that the Shares purchased pursuant to this Agreement are being purchased in full satisfaction of the Investor's pre-emptive rights pursuant to Section 8 of the Subscription Agreement between the Investor and the Company dated March 26, 2003, in respect of the Shares sold by the Company pursuant to the Agreements and hereby waives its notice right pursuant to such provision in respect of the Shares sold by the Company pursuant to the Agreements.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: :
(i) 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 investments in shares presenting securities representing an investment decision like that involved in the purchase of the SharesConvertible Promissory Note, including investments in securities issued by the Company and investments in comparable companiesCompany, and has requested, received, reviewed and considered understood all information it deemed deems relevant in making an informed decision to purchase the Shares; Convertible Promissory Note;
(ii) it acknowledges that the offering of the Convertible Promissory Note pursuant to this Agreement has not been reviewed by the Securities Exchange Commission ("Commission") or any state or other regulatory authority;
(iii) 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 Convertible Promissory Note for its own account and not on behalf of or for investment only the benefit of any U.S. person and the sale and resale of the Convertible Promissory Note have not been prearranged with any buyer in the United States, and the Investor has no present intention of distributing making any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; thereof;
(iiiiv) 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 Convertible Promissory Note or the Common Shares underlying such Convertible Promissory Note except in compliance with the Securities Act, the Securities Act Rules and Regulations and any applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; or blue sky laws;
(v) the Investor will notify has had an opportunity to discuss this investment with representatives of the Company immediately and ask questions of any change in any them and such questions have been answered to the full satisfaction 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 Investor;
(vi) the Investor has, is not a "U.S. person" within the meaning of Rule 902(o) of Regulation S promulgated under the Securities Act and qualifies as an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act;
(vii) the Convertible Promissory Note was not offered to Investor in connection with its decision the United States and at the time of execution of this Investment Agreement and of any offer to the Investor to purchase the number of Shares set forth in Section 3 Convertible Promissory Note hereunder, the Investor was physically outside the United States;
(viii) the Investor hereby agrees that all offers and sales of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Convertible Promissory Note and the representations underlying Common Shares prior to the expiration of a period commencing on the Closing and warranties ending six months thereafter (the "Distribution Compliance Period") shall not be made to U.S. persons or for the account or benefit of U.S. persons and shall otherwise be made in compliance with the provisions of Regulation S; and
(ix) neither Investor nor any person acting directly or indirectly on its behalf has the intention of entering, or will enter during the Distribution Compliance Period into any put option, short position or any hedging transaction or other similar instrument or position with respect to the Common Shares.
5.2 The Investor acknowledges that
(i) the Convertible Promissory Note and the underlying Common Shares have not been and are not being registered under the provisions of the Securities Act, and may not be transferred unless the Investor shall have delivered to the Company contained herein. The Investor understands an opinion of counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that its acquisition the Convertible Promissory Note and the underlying Common Shares to be sold or transferred may be sold or transferred pursuant to Rule 144 or other exemption promulgated under the Securities Act;
(ii) any sale of the Shares has made in reliance on Rule 144 promulgated under the Securities Act may be made only in accordance with the terms of said Rule and further, if said Rule is not been registered applicable, any resale of such Convertible Promissory Note or underlying Common Shares under circumstances in which the seller, or the person through whom the sale is made, may be deemed to be an underwriter, as that term is used in the Securities Act, may require compliance with some other exemption under the Securities Act or registered or qualified the Securities Act Rules and Regulations of the Commission thereunder; and
(iii) neither the Company nor any other person is under any state securities law in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, obligation to register the bona fide nature of Convertible Promissory Note or the Investor’s investment intent as expressed herein. Subject to compliance with underlying Common Shares under 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Company that 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 ;
(ii) the Investor is duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization; and
(iii) 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) ).
5.4 The Investor recognizes that an investment in the Convertible Promissory Note and except as the indemnification agreements underlying Common Shares is speculative and involves a high degree of risk, including a risk of total loss of the Investors herein may be legally unenforceableInvestor's investment. The Investor can bear the economic risk of this investment and can afford a complete loss thereof.
5.5 Investor will not use any All of the Shares acquired pursuant information provided to this Agreement the Company or its agents or representatives concerning the Investor's suitability to cover any short position invest in the Common Stock Company and the representations and warranties contained herein, are complete, true and correct as of the date hereof. The Investor understands that the Company if doing so would be in violation of applicable is relying on the statements contained herein to establish an exemption from registration under U.S. federal and state securities laws.
5.6 The Investor understands and agrees that nothing each certificate or other document evidencing the Convertible Promissory Note and any of the underlying Common Shares 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 securities represented by any such certificate without complying with the restrictions on transfer described in the Exchange Act Documentslegends endorsed on such certificates: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO REGULATION S, the Press ReleasesPROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("SECURITIES ACT"), AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (A) THE PROVISIONS OF REGULATION S, (B) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (C) SUCH OTHER EXEMPTIONS FROM SUCH REGISTRATION. HEDGING TRANSACTIONS WITH RESPECT TO SUCH SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. 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.
5.7 The Investor has taken no action which would give rise to any claim by any person for brokerage commission, finder's fees or similar payments by Investor relating to this 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 materials presented to the Investor persons for fees of a type contemplated in this Section that may be due in connection with the purchase and sale of the Shares constitutes legal, tax or investment advicetransactions contemplated hereby. The Investor has consulted 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 legalclaimed or existing fees, tax as and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shareswhen incurred.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Convertible Promissory Note Agreement (Semotus Solutions Inc)
Representations, Warranties and Covenants of the Investor. 5.1 5.1. The Investor represents and warrants to, and covenants with, the Company that: (ia) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (iib) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock Purchase Agreement Securities 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 Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iiic) 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 Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (ivd) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (ve) if necessary under applicable law, 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 Securities or until the Company is no longer required to keep the Registration Statement effective; and (vif) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase AgreementSecurities, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct 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 timecomplete in all material respects.
5.2 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 that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.3. The Investor hereby covenants with the Company not to make any sale of the Shares Securities 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)satisfied, and the Investor acknowledges that the certificates evidencing the Common Shares, the Warrant, 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 in Section 7.2(c).
5.4 5.4. The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 5.5. The Investor will not use has not, during the 15 days prior to the date of this Agreement, directly or indirectly, traded in the Common Stock or established any of the Shares acquired pursuant to this Agreement to cover any short 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 direct or indirect sale, offer to sell, solicitation of offers to buy, disposition of, loan, pledge or grant of any right with respect to (collectively, a "Disposition") by the Company if doing so 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 Common Stock 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. The Investor acknowledges that the Securities shall bear a restrictive legend to the effect that the Securities have not been registered under the Securities Act and such Securities may not be sold or transferred in violation the absence of applicable securities lawsan effective registration statement or pursuant to an available exemption from registration.
5.6 5.6. The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Securities Purchase Agreement (Odyssey Marine Exploration Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
5.1 (i) the The Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesCommon 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 SharesCommon Stock and Warrants, including without limitation, the Memorandum and the Company’s Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003, delivered to the Investor; (ii) the Investor is acquiring the number of Shares shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature page hereto for its own account for investment only and with no present intention of distributing any of such Shares 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 such Sharesthe shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (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 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 answered filled in all questions requested information on the Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately promptly of any change in any of such information until such time as the Investor has sold all of its Shares 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities law 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. 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the SharesCommon Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the SharesCommon Stock and Warrants, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares Common Stock and Warrants without complying with the provisions of this Agreement and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, directly or indirectly, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a “Disposition”), the Common Stock of the Company if doing so would be in violation of applicable 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 right (including without limitation any put or call option) 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, relates to or derives any 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 lawsmay not be sold or transferred in the absence of an effective registration statement or pursuant to an exemption from registration.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this 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 as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Common Stock and Warrants.
5.7 The Investor shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants until the earlier of such time as the Company has made a public announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an 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 Executive Order 13224. If the Investor is a corporation, trust, partnership, limited liability company or other organization, the Investor certifies that, to the best of its knowledge, the Investor has not been designated, and is not owned or controlled by, a “suspected terrorist” as defined in Executive Order 13224. The Investor hereby acknowledges that 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 cash or property that the Investor will pay or will contribute to the Company has 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 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 does not make or has not made further understands that the Company may release confidential information about the Investor and, if applicable, any representations or warranties with respect underlying beneficial owners, to proper authorities if the transactions contemplated hereby other than those specifically Company, in its sole discretion, determines that it is in the best interest of the Company in light of relevant rules and regulations under the laws set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesubsection (b) above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Avax Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor has 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; (iiiiv) 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; (ivv) all of the representations made by the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date; (vvi) 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 a registration statement effective; and (vivii) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Signature Page to the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands There are no suits, pending litigation, or claims against the undersigned that its acquisition of could materially affect 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 net worth 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue issuance of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of the 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 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 overall commitment of the Prospectus forming a part Investor to investments, which are not readily marketable, is not excessive in view of the Registration StatementInvestor's net worth and financial circumstances, as set forth 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 Section 7.2(c)the Shares.
5.4 5.5 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 (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 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 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.
5.6 5.7 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7 5.8 The Company acknowledges and agrees Investor understands that the issuance of the Shares to the Investor does not make or has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor's representations made in this Agreement. The Investor understands that the Shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the Shares for resale. The Investor acknowledges that the Company will refuse to register any representations or warranties transfer of Shares that is not made in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby other than those specifically set forth 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 this Sections 5 and 16(a), respect of the Shares by securities legislation in the Stock Purchase Agreement or 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.
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 Questionnaire.is not a "U.S. Person," as such term is defined in Rule 902(k) of Regulation S,1 the Investor represents and warrants they are a perso▇ ▇▇ ▇▇▇▇▇▇ ▇▇at is outside the United States, and further represents and warrants as follows: ---------- 1 Regulation S provides in part as follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor has 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 shares set forth in Section 3 of the Stock 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 shares or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iiiiv) 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 shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (ivv) all of the representations made by the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares shares set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations 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.
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 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 therefromare speculative investments, which exemptions may depend upon, among other things, the bona fide nature involve a high degree of risk of loss of the Investor’s investment intent as expressed hereinentire investment. Subject to compliance with Among others, the Securities Act, applicable securities laws undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents 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 timeAnnex II.
5.2 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 that would permit an offering of the Sharesshares, or possession or distribution of offering materials in connection with the issue issuance of the Sharesshares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares shares, or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of the Shares 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)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 Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use overall commitment of the Prospectus forming a part Investor to investments, which are not readily marketable, is not excessive in view of the Registration StatementInvestor’s net worth and financial circumstances, as set forth 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 Section 7.2(c)the shares.
5.4 5.5 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 (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 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 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.
5.6 5.7 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe shares.
5.7 5.8 The Company acknowledges and agrees Investor understands that the issuance of the shares to the Investor does not make or has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the shares or underlying Shares for resale. The Investor acknowledges that the Company will refuse to register any representations or warranties transfer of Shares that is not made in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby 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 than those specifically set forth 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 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 (defined in this Sections 5 and 16(a)Section 5.10 to include the underlying Shares) to non-U.S. Persons, in the Stock Purchase Agreement or in if the Investor Questionnaire.is not a “U.S. Person,” as such term is defined in Rule 902(k) of ▇▇▇▇▇▇▇▇▇▇ ▇,▇ the Investor represents and warrants that the Investor is a 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 represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section Paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not 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 's investment intent as expressed herein. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor's Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.the
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 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)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 prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).
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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock Purchase Agreement (Esperion Therapeutics Inc/Mi)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor has 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 Stock 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; (iiiiv) 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; (ivv) all of the representations made by the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations 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.
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 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 therefromare speculative investments, which exemptions may depend upon, among other things, the bona fide nature involve a high degree of risk of loss of the Investor’s investment intent as expressed hereinentire investment. Subject to compliance with Among others, the Securities Act, applicable securities laws undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents 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 timeAnnex II.
5.2 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue issuance of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of the 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)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 Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use overall commitment of the Prospectus forming a part Investor to investments, which are not readily marketable, is not excessive in view of the Registration StatementInvestor’s net worth and financial circumstances, as set forth 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 Section 7.2(c)the Shares.
5.4 5.5 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 (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 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 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.
5.6 5.7 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7 5.8 The Company acknowledges and agrees Investor understands that the issuance of the Shares to the Investor does not make or has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made any representations in this Agreement. The Investor understands that the Shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or warranties with respect to the transactions contemplated hereby other unless an exemption from such registration and qualification requirements is otherwise available. Other than those specifically “piggyback” registration rights set forth in this Sections 5 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 Investor acknowledges that the Company has 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 16(a)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.
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 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 Stock Purchase Agreement 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 acquisition, (iii) any governmental or other consents that may need to be obtained, and (iv) the income 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 agrees to continue to comply with such laws as long as he, she or it shall hold the Shares.
(d) To the knowledge of the 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 Shares being offered. Such activity includes, without limitation, the mailing of printed material to investors residing in the United States, the holding of promotional seminars in the United States, and the placement of advertisements with radio or television stations broadcasting in the United States or in publications with a general circulation in the Investor QuestionnaireUnited States, which discuss the offering of the Shares. To the knowledge of the Investor, the Shares were not offered to the undersigned through, and the undersigned is not aware of, any form of general solicitation or general advertising, including without limitation, (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
__________________________________ 1 Regulation S provides in part as follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 SharesShares 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, Company Information provided to the Press Releases Investor by the Company in contemplation of this offering and the 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 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached hereto Exhibit B, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use 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 satisfying the provisions requirements of this Agreement the Securities Act and without causing the Rules and Regulations thereunder, including in the event of resale under the Registration Statement, 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)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 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, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Placement Memorandum and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire contained in Exhibit D to the Placement Memorandum, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.in
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; , (ii) 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; (ivb) the Investor has answered all questions on the Investor Questionnaire Signature Page and Exhibit A attached hereto for use in preparation of the Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; Date and (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied only upon any or all of the Exchange Act Documentsfollowing: the Registration Statement, the Press Releases 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 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 such Investor to hold the Shares for any period of time.
5.2 4.2 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, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 . The Investor hereby covenants Placement Agent is not authorized to make and has not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether Shares, except as set forth or incorporated by delivery of the Prospectus or pursuant to and reference 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, the Base Prospectus, the Prospectus Supplement or the Time of Sale Information (as set forth defined in Section 7.2(cthe Placement Agreement).
5.4 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges 4.5 Each Investor represents, warrants and agrees that, since the earlier to occur of (i) the date on which the Placement Agents first contacted such Investor about the Offering and (ii) the date that Investor does not make or is the fifth (5th) trading day prior to the date of this Agreement, it has not made engaged in any representations or warranties with respect transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities). Each Investor covenants that it will not engage in any 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 hereby other than those specifically set forth by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in this Sections 5 the 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-US broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 1 contract
Sources: Placement Agency Agreement (Progen Pharmaceuticals LTD)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (ii) the Investor is acquiring the number of Common Shares, Preferred Shares and Warrants set forth in Section 3 of the Stock 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 the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Common Shares, Preferred Shares and Warrants set forth in Section Paragraph 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities 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. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 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 (ii) 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 limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
5.4 The Investor is (i) acquiring the Securities and (ii) the shares of Common Stock receivable upon conversion or exercise thereof, in each case, for its own account and 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 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 hold any of the Investors herein may be legally unenforceableSecurities 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 Securities Act. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
5.5 The Investor will not use any 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 Shares acquired pursuant Investor set forth herein in order to this Agreement to cover any short position in determine the Common Stock availability of such exemptions and the eligibility of the Company if doing so would be in violation of applicable securities lawsInvestor to acquire the Securities.
5.6 The Investor understands that nothing in the Exchange Act Documentsand its advisors, the Press Releasesif any, this Agreement or any other have been furnished with all publicly available materials presented relating to the Investor in connection with business, finances and operations of the purchase Company and such other publicly available materials relating to the offer and sale of the Shares constitutes legal, tax or investment adviceSecurities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax 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 advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), Securities or the fairness or suitability of the investment in the Stock Purchase Agreement Securities, nor have such authorities passed upon or in endorsed the Investor Questionnairemerits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; , (ii) 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; (ivb) the Investor has answered all questions on the Investor Questionnaire Signature Page and Exhibit A attached hereto for use in preparation of the Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; Date and (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied only upon any or all of the Exchange Act Documentsfollowing: the Registration Statement, the Press Releases 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 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 such Investor to hold the Shares for any period of time.
5.2 4.2 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 any Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 . The Investor hereby covenants Placement Agents are not authorized to make and have not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether Shares, except as set forth or incorporated by delivery of the Prospectus or pursuant to and reference 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, the Basic Prospectus, the Prospectus Supplement or the Time of Sale Information (as set forth defined in Section 7.2(cthe Placement Agreement).
5.4 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 4.5 The Company acknowledges Investor represents, warrants and agrees that, since the earlier to occur of (i) the date on which the Placement Agents first contacted the Investor about the Offering and (ii) the date that Investor does not make or is the tenth (10th) trading day prior to the date of this Agreement, it has not made engaged in any representations short selling of the Company’s securities, or warranties established or increased any “put equivalent position” as defined in Rule 16(a)-1(h) under the Securities Exchange Act of 1934 with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor QuestionnaireCompany’s securities.
Appears in 1 contract
Sources: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 (a) The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make making decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companiesStock, and has requested, received, reviewed and considered all information it deemed relevant in making an informed decision to purchase the SharesStock; (ii) 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 shares of Stock or any arrangement or understanding with any other persons regarding the distribution of such Sharesshares of Stock, provided that the decision to sell the Stock remains in the control of the Investor, notwithstanding the previous representation; (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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number shares of Shares Stock set forth in Section 3 of the Stock Purchase Agreementherein, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein. The herein and the Company's filings with the Commission; and (v) the Investor understands that its acquisition the certificate representing the shares of Stock will bear a legend to ensure compliance with the Shares has not been registered Securities Act and the Investor agrees to comply with the requirements of such legend until such shares of Stock are eligible for sale under Rule 144(k) under the Securities Act or registered or qualified until such shares of Stock have been sold 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 (b) 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 (ii) 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 the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' and contracting parties’ ' rights generally and except as the enforceability thereof 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 agreement of the Investors Investor herein may be judicially determined to be legally unenforceableunenforceable as against public policy.
5.5 Investor will not use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock Purchase Agreement (Investors Financial Services Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Preferred 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 Preferred Shares; (ii) the Investor is acquiring the number of Preferred 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 Preferred Shares or any arrangement or understanding with any other persons regarding the distribution of such Preferred 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 Preferred Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder, except that the Investor may pledge the Preferred Shares in connection with a bona fide margin account or other loan or financing; (iv) the Investor has answered all questions on and the Investor Questionnaire Investor’s representatives, if any, have been solely responsible for use in preparation the Investor’s own “due diligence” investigation of the Registration Statement Company and the answers thereto are trueits management and business, correct and complete as for its own analysis of the date hereof merits and will be truerisks of this investment, correct and complete as for the Investor’s own analysis of the Closing Date; (v) fairness and desirability of the Investor will notify terms of 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 effectiveinvestment; and (viv) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase AgreementPreferred Shares, relied only upon the Exchange Act Documents, the Press Releases SEC Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Preferred 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 The Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached to this Annex I as Exhibit A, applicable securities laws which completed questionnaire is true, correct 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 timecomplete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares or the Conversion 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)Agreement, and the Investor acknowledges that the certificates evidencing the Preferred Shares and the Conversion 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 in Section 7.2(c).
5.4 5.3 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 (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 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 use any of the 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.
5.6 5.4 The Investor understands that nothing in the Exchange Act SEC Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Preferred Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Preferred Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Securities Purchase Agreement (Small World Kids Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) 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 decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by such Investor to hold the Shares for any period of timereference therein.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) the Company has not authorized anyone to make and has not made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with Shares, except as set forth or incorporated by reference in the provisions of this Agreement and without causing base prospectus, the prospectus delivery requirement supplement or any free writing prospectus.
4.3 If the Investor is an officer or director of the Company, or more than 10% shareholder in the Company, the Investor acknowledges and agrees that the Shares delivered may be deemed to be “control securities” under Rule 144 promulgated under the Securities Act to be satisfied (whether by delivery and, accordingly, the resale of the Prospectus or pursuant to and in compliance with an exemption from such requirement), Shares may be restricted under Rule 144 and the Shares may be subject to a restrictive legend under the Securities Act. Such Investor acknowledges that shall comply with any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy adopted by the certificates evidencing Company from time to time covering transactions in the Shares will be imprinted with a legend that prohibits their transfer except in accordance therewithCompany’s securities by employees, officers or directors of the Company. The Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use agrees not to sell or otherwise dispose of the Prospectus forming Shares in any manner which would constitute a part violation of the Registration Statement, as set forth in Section 7.2(c)any applicable federal or state securities laws.
5.4 4.4 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.5 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or the Disclosure Package, or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section paragraph 3 of the Stock Purchase first page of this Agreement in the ordinary course of its business and 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 or 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 Investor Questionnaire first page and the signature page of this Agreement for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section paragraph 3 of the Stock Purchase first page of this Agreement, carefully read and relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and Agreement, including Section 7.2 hereof and, without effectively 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)satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares will be imprinted with (i) a legend that prohibits their transfer except in accordance therewith, 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a “Disposition”), the Common Stock of the Company if doing so would be in violation of applicable securities lawsthe 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 right (including without limitation any put or call option) 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, relates to or derives any significant part of its value from the Common Stock of the Company. Nothing in this Section 5.5 is intended or shall be construed as placing any limitations or 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants toto the Company, and covenants withfor the benefit of the Company, the Company that: as follows:
(ia) the The Investor is an “"accredited investor” " as defined in under Rule 501 of Regulation D promulgated under the Securities Act and of 1933, as amended (the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; "Securities Act");
(iib) the 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 and not with a view to any distribution of the Shares in violation of the Securities Act;
(c) The Investor acknowledges that it has significant prior investment only experience, including investment in non-listed and with no present intention non-registered securities, and that the Investor recognizes the highly speculative nature of distributing any 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 sell securities pursuant to Rule 144 of such Shares or any arrangement or understanding with any the 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 persons information regarding the distribution of such Shares; (iii) Company that the Investor had requested or desired to know and all other documents which could be reasonably provided have been made available for the Investor’s inspection and review;
(d) The Investor acknowledges that the Shares have not been passed upon or reviewed by the Securities and Exchange Commission. The Investor agrees that it will not, directly or indirectly, offer, not 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 until they are registered under the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 unless an exemption from such requirement), registration is available and that a legend substantially in the Investor acknowledges that the certificates evidencing the Shares form as provided in Section 4 below will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that there may occasionally be times when placed on the Company determines that it must suspend certificate(s) representing the use of the Prospectus forming a part of the Registration Statement, as set forth in Section 7.2(c).shares to such effect;
5.4 The Investor further represents and warrants to, and covenants with, the Company that (ie) 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 (ii) 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 in equity or at law) and except as the indemnification agreements Section 13 of the Investors herein may be legally unenforceable.
5.5 Investor will not use any of the 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.
5.6 The Investor understands that nothing in the Securities and Exchange Act Documentsof 1934, as amended (the Press Releases“Exchange Act”), this Agreement or and is not acting in concert with any other materials presented to the person acting in such manner. Investor in connection with the purchase makes its own voting and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax dispositive decisions and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made agreed to grant any representations proxy or warranties enter into any form of voting trust, agreement or similar arrangement with respect to the transactions 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 Warrants (the “Warrants”) issued in January of 2008 to certain investors and the placement agent (the “Note Holders”) have certain full ratchet and other than those specifically set forth in this Sections 5 anti dilutions protections attached to their Notes and 16(a)Warrants, and that the Company shall have obtained partial waivers from the Note Holders which provide, in relevant part, that the Stock Purchase Agreement or Conversion Price (as defined in the Investor QuestionnaireNotes) 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 invest new monies, and further provide that such Note Holders waive any other anti dilution rights that would otherwise cause an adjustment to the exercise price of the Warrants or any other anti dilution rights that would cause an adjustment or adjustments to the nature of the Warrants or Notes as a result of this offering.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (China Broadband Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agents 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 shares units presenting an investment decision like that involved in the purchase of the SharesUnits, 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; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in 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 such Investor to hold the Shares for any period of timePlacement Agreement.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Units or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Units, 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 Section 7.2(c)the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement.
5.4 (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits.
5.7 The Company acknowledges and agrees that 4.5 Since the time at which a Placement Agent first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations or warranties with respect information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales 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 hereby other than those specifically set forth herein and (ii) not engage in this Sections 5 and 16(aany purchases or sales of the securities of the Company (including Short Sales), in each case prior to the Stock Purchase time that the transactions contemplated by this Agreement or are publicly disclosed. The Investor agrees that it will not use any of the Units acquired pursuant to this Agreement to cover any short position in the Investor QuestionnaireCommon 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-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Sources: Subscription Agreement (Houston American Energy Corp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Placement Memorandum and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached herein, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 Agreement, including the notification and suspension provision of Section 7.2 hereof, and without effectively 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)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 in Section 7.2(c).
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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesPlacement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) 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 investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 investment decision to purchase the SharesSecurities; (ii) the Investor is acquiring the number of Shares Securities as set forth in Section 3 of the Stock Purchase 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 the Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 Securities except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares Securities as set forth in Section 3 of the Stock Purchase this Agreement, relied only upon the documents filed by the Company under the Securities Exchange Act Documentsof 1934, as amended, since January 1, 2011 and has had the Press Releases 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 Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Shares has not Securities 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 '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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 will be imprinted with a legend that prohibits their transfer except in accordance therewith5.2. The Investor acknowledges that there may occasionally be times when is an entity duly organized, validly existing and in good standing under the Company determines that it must suspend the use laws of the Prospectus forming a part jurisdiction of the Registration Statement, as set forth in Section 7.2(c).
5.4 The Investor further represents its organization with full power 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 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 (ii) 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 the indemnification agreements of the Investors herein may be legally unenforceable).
5.5 5.3. The Investor will is not use purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement, including, without limitation any document filed under the Securities Act of 1933, as amended ("Securities Act").
5.4. The Investor is acquiring the Shares acquired pursuant to this Agreement to cover any short position Securities for its own account and not with a view towards, or for resale in connection with, the Common Stock of the Company if doing so would be public sale or distribution thereof in violation of applicable securities lawsthe Securities Act.
5.6 5.5. The Investor understands that nothing the Securities are being offered and sold to it in reliance on specific exemptions from the Exchange Act Documentsregistration 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 Press Releasesrepresentations, this Agreement or any other 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 presented relating to the Investor in connection with business, finances and operations of the purchase Company and such other publicly available materials relating to the offer and sale of the Shares constitutes legal, tax or investment advicethe. The Investor has consulted such legaland its advisors, tax and investment advisors as itif any, in its sole discretion, has deemed acknowledge that they have had full access to all the information they consider necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not to make or has not made any representations or warranties an informed investment decision with respect to the transactions contemplated hereby by this Agreement and the Transaction Documents, including the Company's publicly available documents, which are available on the website of the Securities and Exchange Commission at ▇▇▇.▇▇▇.▇▇▇. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other than those specifically set forth in this Sections 5 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 16(a), warranties contained herein. The Investor understands that its investment in the Stock Purchase Agreement Securities 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 Preferred Shares or the fairness or suitability of the investment in the Investor QuestionnaireSecurities, nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
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 covenants agrees 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 shares securities presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The Investor acknowledges, represents and agrees that no (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, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants 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 Company not to make any issue, placement, purchase and sale of the 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)Shares, 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 Section 7.2(c)the Base Prospectus, the Prospectus Supplement or any free writing prospectus.
5.4 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to 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 those specifically set forth 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 Sections 5 Agreement are publicly disclosed. The Investor agrees that it will not use any of the 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-U.S. broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 1 contract
Sources: Subscription Agreement (Catalyst Pharmaceutical Partners, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
(i) the The Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesCommon 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 SharesCommon Stock and Warrants, including without limitation, the Memorandum and the Company's SEC Documents all delivered to the Investor; (ii) the Investor is acquiring the number of Shares shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and signature pages hereto for its own account for investment only and with no present intention of distributing any of such Shares 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 such Sharesthe shares of Common Stock, Warrants and the shares of Common Stock issuable upon exercise of the Warrants; (iii) the Investor's answers to each of the questions on the signature pages to this Agreement are true, correct and complete as of the date of this Agreement, (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 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; (ivv) the Investor has answered filled in all questions requested information on the Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (vvi) the Investor will notify the Company immediately promptly of any change in any of such information until such time as the Investor has sold all of its Shares 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 (vivii) the Investor has, in connection with its decision to purchase the number of Shares shares of Common Stock and Warrants set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares Common Stock and Warrants has not been registered under the Securities Act or registered or qualified under any state securities law 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 '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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the SharesCommon Stock and Warrants, or possession or distribution of offering materials in connection with the issue issuance of the SharesCommon Stock and Warrants, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares the shares of Common Stock and Warrants or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor represents and warrants that neither Investor nor any person affiliated with or acting at the direction of Investor traded in the Common Stock of the Company at any time within the 30 days prior to the date of this Agreement, including without limitation any sales of Common Stock, any short sales of Common Stock or any other transactions that may have the effect of affecting the trading pricing of the Common Stock of the Company. The Investor hereby covenants with the Company not to make any sale of the Shares Common Stock and Warrants without complying with the provisions of this Agreement and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, and the Investor acknowledges that the certificates evidencing the Shares 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of SECTION 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, directly or indirectly, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a "Disposition"), the Common Stock of the Company if doing so would be in violation of applicable 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 right (including without limitation any put or call option) 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, relates to or derives any 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 lawsmay not be sold or transferred in the absence of an effective registration statement or pursuant to an exemption from registration.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this 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 as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Common Stock and Warrants.
5.7 The Investor shall hold in strict confidence all information concerning this Agreement and the Offering of the Common Stock and Warrants until the earlier of such time as the Company has made a public announcement concerning this Agreement or the Offering of the Common Stock and Warrants.
5.8 If the Investor is an 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 Executive Order 13224. If the Investor is a corporation, trust, partnership, limited liability company or other organization, the Investor certifies that, to the best of its knowledge, the Investor has not been designated, and is not owned or controlled by, a "suspected terrorist" as defined in Executive Order 13224. The Investor hereby acknowledges that 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 cash or property that the Investor will pay or will contribute to the Company has 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 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 does not make or has not made further understands that the Company may release confidential information about the Investor and, if applicable, any representations or warranties with respect underlying beneficial owners, to proper authorities if the transactions contemplated hereby other than those specifically Company, in its sole discretion, determines that it is in the best interest of the Company in light of relevant rules and regulations under the laws set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesubsection (b) above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Avax Technologies Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor has reviewed the Memorandum, the Notes, the Indenture, the Warrant Agreements, and the Registration Rights Agreement, together with the Investor's professional advisors, if any; (ii) the Investor has had an opportunity to ask the Company's representatives questions regarding the offering and receive answers from the Company; (iii) the Investor has been afforded an opportunity to request from the Company, and to review, all additional information the Investor considered to be necessary to verify the accuracy of or to supplement the information in the Memorandum; (iv) the Investor is either (a) an “institutional "accredited investor” " (as defined in under Rule 501(a) (1), (2), (3), or (7) of Regulation D under the Securities Act Act) or (b) an individual "accredited investor" (as defined under Rule 501(a)(5) or (6) of Regulation D under the Securities Act), and the Investor is also knowledgeable, sophisticated and experienced in making, making and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Securities and the 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 Shares; (iiv) by reason of the Investor's business or financial experience, or that of the Investor's financial advisor, Investor is capable of evaluating the merits and risks of an investment in the Securities and the Shares and of protecting the Investor's own interests in connection with the transaction; (vi) the Investor has adequate means to provide for the Investor's financial needs with no expectation of a return on the Investor's investment, including a complete loss of the investment; (vii) the Investor understands that the Securities and the Shares have not been registered under the Securities Act and may not be resold unless they are so registered or unless an exemption from registration is available; (viii) 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 Securities for its Investor's own account account, for investment only and not with no present intention a view toward their distribution within the meaning of distributing any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities Act; (iiiix) 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 Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (ivx) the Investor has answered all questions on the Investor Questionnaire for use in preparation first page of the Registration Statement Agreement, the Securities Questionnaire attached hereto as Exhibit A and Selling Securityholder Notice and Questionnaire attached hereto as Exhibit B, and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (vxi) the Investor will notify the Company immediately of any change in any of such information in the Securities Questionnaire or the Selling Securityholder Notice and Questionnaire 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 is declared effective; and (vixii) the Investor has, in connection with its decision to purchase the number of Shares Securities set forth in Section 3 on the first page of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, Company Information provided to the Press Releases Investor by the Company in contemplation of this offering and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Securities and the Shares has not been registered under the Securities Act 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 's investment intent as expressed herein. Subject The Investor acknowledges, represents and agrees that if it resells or transfers the Securities or the Shares, it will do so only:
(a) to compliance the Company or any of its subsidiaries;
(b) with respect to the Five-Year Warrants and, in the event the Shares become eligible for resale or transfer under Rule 144A under the Securities Act, applicable securities laws the Shares, to a qualified institutional buyer in compliance with Rule 144A;
(c) to an accredited investor (as defined in Rule 501(a)(1), (2), (3), (5), (6) or (7) of Regulation D under the Securities Act) that, prior to such transfer, furnishes (i) to the Trustee, as registrar for the Notes, a signed letter substantially in the form of Exhibit B to the Indenture, (ii) to the Warrant Agent, as registrar for the Warrants, a signed letter substantially in the form of Exhibit B to the each of the Warrant Agreements, or, as applicable, (iii) to the transfer agent for the Company's Common Stock, a signed letter substantially in the form provided by such transfer agent, each containing certain representations and agreements relating to the restrictions on transfer of the Securities and Shares;
(d) outside the United States in compliance with Rule 904 under the Securities Act;
(e) in accordance with the exemption from registration provided by Rule 144 under the Securities Act;
(f) in accordance with another valid exemption from the registration requirements of the Securities Act; or
(g) in accordance with a registration statement that has been declared effective under the Securities Act and which continues to be effective at the time of such transfer. The Investor agrees that, prior to such transfer, it will furnish to the Company, and the respective rules Trustee, the Warrant Agent or the Transfer Agent, as applicable, an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and regulations promulgated thereunder, nothing contained herein shall be deemed a representation such certificates and other information as they may reasonably require to confirm that any transfer by the Investor of the Securities or warranty by such Investor to hold the Shares for any period complies with the foregoing restrictions and is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of timethe Securities Act.
5.2 The Investor acknowledges, represents and agrees that it will, and each subsequent holder will be required to, give each person to whom it transfers Securities or Shares notice of any restrictions on transfer of such Securities or Shares, if then applicable.
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 Agents that would permit an offering of the Securities and the Shares, or possession or distribution of offering materials in connection with the issue issuance of the Securities and the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities and Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agents are not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Securities and the Shares other than the Memorandum and the documents incorporated therein by reference.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of (i) the Shares Securities without complying with the provisions of this Agreement Agreement, the Registration Rights Agreement, the Indenture and the Warrant Agreements, as applicable, and without effectively causing the prospectus delivery requirement under the Securities Act to be satisfied satisfied, and (whether by ii) the Shares without complying with the provisions of this Agreement, the Registration Rights Agreement, the Indenture and the Warrant Agreements, as applicable, and without effectively causing the prospectus delivery of requirement under the Prospectus or pursuant Securities Act to and in compliance with an exemption from such requirement)be satisfied, and the Investor acknowledges that the certificates evidencing the Securities and Shares will be imprinted with a legend that prohibits their transfer except in accordance therewith. The Investor acknowledges that that, pursuant to the provisions of the Registration Rights Agreement, there may occasionally be times when the Company Company, based on the advice of its counsel, determines that it must suspend the use of the Prospectus forming a part of the Registration StatementStatement 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.
5.5 The Investor acknowledges and agrees that, in compliance with the Warrant Agreements, except in the case of a "Cashless Exercise" of the Five-Year Warrants or the Five-Year Terminable Warrants that is in compliance with Section 3(a)(9) of the Securities Act and that is pursuant to Section 10(b) of the Five-Year Warrant Agreement or the Five-Year Terminable Warrant Agreement, as set forth applicable, or in the case such Securities were sold pursuant to an effective shelf registration statement covering such Securities, until the end of the holding period under Rule 144(k) of the Securities Act, unless otherwise agreed by the Company in writing, in order to exercise the Warrants for Shares of Common Stock, such holder must, among other things, execute and deliver a letter for the benefit of the Company, substantially in the form included as Exhibit B to each of the Warrant Agreements. In compliance with the Indenture (with respect to Shares issued upon the conversion of Notes) or the Warrant Agreements (with respect to Shares issued upon exercise of Warrants), until the end of the holding period under Rule 144(k) of the Securities Act, unless otherwise agreed by the Company in writing, if a holder proposes to sell or transfer Shares other than pursuant to Section 7.2(c5.1(g) above (unless such Shares have been issued pursuant to a valid exemption from the registration requirements under the Securities Act upon conversion of Notes or exercise of Warrants that have been transferred pursuant to Section 5.1(g) above), such purchaser or transferee must execute and deliver a letter for the benefit of the Company, substantially in the form included as Exhibit B to the Indenture, if such Shares were issued upon conversion of Notes, or substantially in the form included as Exhibit B to the appropriate Warrant Agreement, if such Shares were issued upon exercise of the Warrants. In addition to the foregoing, the Investor acknowledges and agrees that, prior to any such exercise or transfer described in this Section 5.5, it will furnish to the Company, and the Trustee, Warrant Agent or the Transfer Agent, as applicable, an opinion of counsel if the Company so requests (other than with respect to a transfer pursuant to an effective registration statement under the Securities Act) and such certificates and other information as they may reasonably require to confirm that any exercise by the Investor of the Warrants or transfer by the Investor of the Shares complies with the foregoing restrictions and is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
5.4 5.6 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 (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 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 use any 5.7 The Investor's purchase of the Shares acquired pursuant to this Agreement to cover any short position in Securities is based on the Common Stock of Memorandum and discussions with the Company if doing so would be in violation and the Placement Agents, and not as a result of applicable securities lawsany other communication, notice, letter advertisement, article, publication, news release, broadcast or other communication.
5.6 5.8 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Securities or Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Securities and Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Note, Warrant and Unit Purchase Agreement (General Electric Co)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, 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; Units, including but not limited to, the Company's Registration Statement and all documents incorporated therein by reference, (ii) 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; (ivb) the Investor has answered all questions on the Investor Questionnaire Signature Page for use in preparation of the Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; , (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied only upon the Exchange Act DocumentsBase Prospectus, the Press Releases 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 representations and warranties of the Company contained herein. The , and (d) the Investor understands that its acquisition is an "accredited investor" within the meaning of the Shares has not been registered Rule 501(a)(1), (2) or (3) under the Securities Act or registered or qualified under any state securities law in reliance on specific exemptions therefromof 1933, which exemptions may depend upon, among other things, as amended (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 such Investor to hold the Shares for any period of time").
5.2 4.2 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 that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue of the Shares, Units in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or Warrants or has in its it possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants . No party has been authorized to make, and have not made, any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Units, 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 Section 7.2(c)the Base Prospectus or the Prospectus Supplement.
5.4 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 the indemnification agreements of the Investors herein may be legally unenforceable.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands understand that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesUnits.
5.7 4.5 The Company acknowledges Investor represents, warrants and agrees that, since the date on which the Investor was first contacted about the Offering until the time that Investor does not make the material terms of the transaction hereunder are publicly disclosed in a press release or a filing with the Commission, it has not made engaged, and will not engage, in any representations short selling of the Company's securities, or warranties established or increased any "put equivalent position" as defined in Rule 16(a)- 1(h) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor QuestionnaireCompany's securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor has 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 Stock 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; (iiiiv) 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; (ivv) all of the representations made by the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations 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.
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 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 therefromare speculative investments, which exemptions may depend upon, among other things, the bona fide nature involve a high degree of risk of loss of the Investor’s investment intent as expressed hereinentire investment. Subject to compliance with Among others, the Securities Act, applicable securities laws undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents 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 timeAnnex II.
5.2 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue issuance of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of the 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)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 Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use overall commitment of the Prospectus forming a part Investor to investments, which are not readily marketable, is not excessive in view of the Registration StatementInvestor’s net worth and financial circumstances, as set forth 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 Section 7.2(c)the Shares.
5.4 5.5 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 (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 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 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.
5.6 5.7 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7 5.8 The Company acknowledges and agrees Investor understands that the issuance of the Shares to the Investor does not make or has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the Shares must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that the Company has no obligation to register or qualify the Shares for resale. The Investor acknowledges that the Company will refuse to register any representations or warranties transfer of Shares that is not made in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby other than those specifically set forth 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 this Sections 5 and 16(a), respect of the Shares by securities legislation in the Stock Purchase Agreement or 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.
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 ▇▇▇.▇▇▇.▇▇▇.
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 Questionnaire.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:
Appears in 1 contract
Sources: Securities Purchase Agreement (NYXIO TECHNOLOGIES Corp)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 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 Section 3 of on the Stock Purchase Agreement Signature Page hereto in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares or any and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares 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 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained herein. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act 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 's investment intent as expressed herein. Subject The Placement Agent is not authorized to compliance make any representation or use any information in connection with the Securities Actplacement, applicable securities laws purchase 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.
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 that would permit an offering sale of the Shares, and no person is authorized to provide any representation which is inconsistent or possession or distribution of offering materials in connection with addition to those in the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 will be imprinted with a legend that prohibits their transfer except in accordance therewithSEC Reports. 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesuch representations.
Appears in 1 contract
Sources: Stock Purchase Agreement (Endocardial Solutions Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the 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 SharesShares and the Warrant; (ii) 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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and and, unless otherwise disclosed to the Company in writing prior to the Closing Date, will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares and the Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 '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 such 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.
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 that would permit an offering of the Shares, Warrant or Warrant Shares or possession or distribution of offering materials in connection with the issue of the Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any 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 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 in Section 7.2(c).
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 (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 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 use any of the Shares or the Warrant acquired pursuant to this Agreement Agreement, or the Warrant Shares acquired pursuant to the Warrant, to cover any short position in the Common Stock of the Company if doing so would be in violation of applicable securities laws.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrant.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a)) of this Agreement, in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees 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 shares securities presenting an investment decision like that involved in the purchase of the SharesUnits, 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; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 documents incorporated by reference therein 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 timeOffering Information.
5.2 The (a) If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor 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 Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (a) The Investor hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package, the Offering Information or any other materials presented to the Investor in connection with the purchase and sale of the Shares 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 SharesUnits. 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.
5.7 4.5 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to 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 those specifically set forth 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 Sections 5 and 16(aAgreement 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 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 Stock Purchase Agreement Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 1 contract
Sources: Subscription Agreement (Oxygen Biotherapeutics, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Placement Memorandum and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit D to the Placement Memorandum, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense. The Placement Agent is not authorized to make any representation or use any information in connection with the issue, placement, purchase and sale of the Shares other than as contained in the 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 Agreement, including Section 7.2 hereof, and without effectively 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)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 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, Statement pursuant to Section 7.2 hereof until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover 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 in (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 Common Stock of the Company if doing so would be in violation 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 applicable securities lawsits value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesPlacement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of the Stock 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date and the Filing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Securities Purchase Agreement, Agreement relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 '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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, Shares or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (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 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 Common Stock, nor has the Investor, directly or indirectly, caused any person to engage in any short sales or similar transactions with respect to the Common Stock. Without limiting the foregoing, Investor will not use any of the 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 lawslaws and will otherwise comply with federal securities laws in the holding and sale of the Shares.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agents 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 shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in 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 such Investor to hold the Shares for any period of timePlacement Agreement.
5.2 The Investor acknowledges, represents and agrees that no 4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Shares, 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 Section 7.2(c)the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement.
5.4 (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The Company acknowledges and agrees that 4.5 Since the time at which a Placement Agent first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations or warranties with respect information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales 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 hereby other than those specifically set forth herein and (ii) not engage in this Sections 5 and 16(aany purchases or sales of the securities of the Company (including Short Sales), in each case prior to the Stock Purchase time that the transactions contemplated by this Agreement or are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Investor QuestionnaireCommon 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-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Sources: Subscription Agreement (Houston American Energy Corp)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants that it has received the Prospectus and the Registration Statement. The Investor is aware that an investment in the Units involves a number of significant risks and has carefully read and considered the matters set forth in the Prospectus and the Registration Statement, including but not limited to the Section entitled "Risk Factors."
4.2 The Investor further represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 (ii) this Agreement constitutes a valid and binding obligation of the such 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 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).
4.3 The Investor represents and warrants to, and covenants with, the Company that: (i) individually and/or together with its advisors, the Investor is knowledgeable, sophisticated and except as experienced in making, and is qualified to make, decisions with respect to investments in shares representing an investment decision like that involved in the indemnification agreements purchase of the Investors herein may be legally unenforceableUnits; and (ii) the Investor has, in connection with its decision to purchase the number of Units set forth on the signature page of this Agreement, relied solely upon the Registration Statement, any amendments or supplements thereto and the Prospectus and has not relied upon any information provided by ▇▇▇▇▇▇▇▇ Curhan Ford & Co. in its capacity as Placement Agent for the Company.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releasesprospectus and any supplement thereto, this Agreement or any other materials presented to the such Investor in connection with the purchase and sale of the Shares Units constitutes legal, tax or investment advice. The Such Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Units.
5.7 The Company acknowledges 4.5 From and agrees that after obtaining knowledge of the sale of the Units contemplated hereby, such Investor does not make or has not made taken, and prior to the public announcement of the transaction such Investor shall not take, any representations action that has caused or warranties will cause such Investor to have, directly or indirectly, sold or agreed to sell any Units, Common Stock or Warrants, effected any short sale, whether or not against the box, established any "put equivalent position" (as defined in Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended) with respect to the transactions contemplated hereby Units, the Common Stock or the Warrants, granted any other than those specifically set forth in this Sections 5 and 16(a)right (including, without limitation, any put or call option) with respect to the Units, the Common Stock or the Warrants, or with respect to any security that includes, relates to or derives any significant part of its value from the Units, the Common Stock or the Warrants, whether or not, directly or indirectly, in the Stock Purchase Agreement or order to hedge its position in the Investor QuestionnaireUnits.
Appears in 1 contract
Sources: Subscription Agreement (uWink, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The ---------------------------------------------------------- Investor hereby represents and warrants to, and covenants with, the Company that: as follows:
(i) the The Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares, including without limitation, the Confidential Private Placement Memorandum dated December 2001, and all exhibits attached thereto and incorporated by reference therein (the "Memorandum") and the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2001 subsequently delivered to the Investor; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and 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 has answered filled in all questions requested information on the Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the 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 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 '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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, directly or indirectly, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a "Disposition"), the Common Stock of the Company if doing so would be in violation of applicable securities lawsthe 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 right (including without limitation any put or call option) 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, relates to or derives any 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 transferred in the absence of an effective registration statement or pursuant to an exemption from registration.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Investor shall hold in strict confidence all information concerning this Agreement and the Offering of the Shares until the earlier of such time as the Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in a public announcement concerning this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor QuestionnaireOffering of the Shares.
Appears in 1 contract
Sources: Stock Purchase Agreement (Interneuron Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct 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 timecomplete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)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 in Section 7.2(c).
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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.investment
Appears in 1 contract
Sources: Stock Purchase Agreement (Warburg Pincus Ventures Lp)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (ii) the Investor is acquiring the number of Shares Securities set forth in Section 3 of the Stock 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 Securities or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 Securities 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 Securities set forth in Section 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its acquisition of the Shares 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct 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 timecomplete in all material respects.
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 that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares Securities 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)satisfied, and the Investor acknowledges that the certificates evidencing the Shares 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 in Section 7.2(c).
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 (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 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 use any of the Shares restricted Securities 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and 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 Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesUnits, 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 SharesUnits; (ii) the Investor has 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 Units set forth in Section 3 of the Stock 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 Units or any arrangement or understanding with any other persons regarding the distribution of such SharesUnits; (iiiiv) 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 Units except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; (ivv) all of the representations made by the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares Units set forth in Section 3 of the Stock Signature Page to the Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations 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.
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 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 therefromUnits are speculative investments, which exemptions may depend upon, among other things, the bona fide nature involve a high degree of risk of loss of the Investor’s investment intent as expressed hereinentire investment. Subject to compliance with Among others, the Securities Act, applicable securities laws undersigned has carefully considered each of the risks identified under the caption “Risk Factors” in the Exchange Act Documents 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 timeAnnex II.
5.2 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 that would permit an offering of the SharesUnits, or possession or distribution of offering materials in connection with the issue issuance of the SharesUnits, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Units, Shares, Warrants or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 5.4 The Investor hereby covenants with the Company not to make any sale of the Units, Shares, Warrants 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)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 Investor acknowledges that there may occasionally be times when the Company determines that it must suspend the use overall commitment of the Prospectus forming a part Investor to investments, which are not readily marketable, is not excessive in view of the Registration StatementInvestor’s net worth and financial circumstances, as set forth 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 Section 7.2(c)the Units.
5.4 5.5 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 (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 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 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.
5.6 5.7 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Units constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors advisors, as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Units.
5.7 5.8 The Company acknowledges and agrees Investor understands that the issuance of the Units to the Investor does not make or has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, including Regulation D and/or Regulation S, which exemption depends upon, among other things, the accuracy of the Investor’s representations made in this Agreement. The Investor understands that the Units must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, or unless an exemption from such registration and qualification requirements is otherwise available. The Investor acknowledges that 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 representations transfer of Units, Shares or warranties Warrant Shares that is not made in accordance with respect the provisions of Regulation S, registered pursuant to the transactions contemplated hereby 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 or Warrant 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 or Warrant Shares in such jurisdiction and it is aware of the risks and other than those specifically set forth 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 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 of compliance with the Regulation S exemption for the offer and sale of the Units (defined in this Sections 5 Section 5.10 to include the underlying Shares and 16(a)Warrant Shares) to non-U.S. Persons, in the Stock Purchase Agreement or in if the Investor Questionnaire.is not a “U.S. Person,” as such term is defined in Rule 902(k) of ▇▇▇▇▇▇▇▇▇▇ ▇,▇ the Investor represents and warrants that the Investor is a person or entity that is outside the United States, and further represents and warrants as follows:
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants agrees 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 shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act DocumentsDisclosure Package, the Press Releases documents incorporated by reference therein and the 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 such Investor to hold the Shares for any period of timeOffering Information.
5.2 The 4.2 If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor 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 Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 (a) The Investor hereby covenants with the Company not to make any sale of the 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 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 in Section 7.2(c).
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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.investment
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 5.1. The Investor represents and warrants to, and covenants with, the Company that: (i) 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 investments in shares presenting an investment decision like that involved in the purchase of the Preferred 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 Preferred Shares; (ii) the Investor is acquiring the number of Preferred Shares set forth in Section 3 Article III of the Stock 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 such the Preferred Shares or any arrangement or understanding with any other persons regarding the distribution of such Sharessecurities; (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 Shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder; and (iv) the Investor has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Preferred Shares set forth in Section 3 Article IV of the Stock attached Securities Purchase Agreement, relied only upon the documents filed by the Company under the Securities Exchange Act of 1934, as amended, since January 1, 2009 (the “Exchange Act Documents”) and has reviewed or has had the opportunity to review a draft copy of the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, and has had the Press Releases 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 Company contained herein. The Investor understands that its neither the Offering nor the acquisition of the Preferred Shares has not 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. 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 will be imprinted with a legend that prohibits their transfer except in accordance therewith5.2. The Investor acknowledges that there may occasionally be times when (other than individuals) is an entity duly organized, validly existing and in good standing under the Company determines that it must suspend the use laws of the Prospectus forming a part jurisdiction of the Registration Statement, as set forth in Section 7.2(c).
5.4 The Investor further represents its organization with full power 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 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 (ii) 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 as rights to indemnity and contribution may be limited by state or federal securities laws or the public policy underlying such laws, and 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) ).
5.3. The Investor is not purchasing the Preferred Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement, including, without limitation any document filed under the Securities Act of 1933, as amended (“Securities Act”).
5.4. The Investor is acquiring the Preferred Shares and except as the indemnification agreements shares of Common Stock receivable upon conversion of the Investors herein may be legally unenforceable.
5.5 Preferred Shares for its own account and 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 will does not use agree to hold any of the Preferred Shares acquired for any minimum or other specific term and reserves the right to dispose of the Preferred Shares 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 this Agreement to cover any short position a registration statement or an exemption under the Securities Act. The Investor is acquiring the Preferred Shares hereunder in the Common Stock ordinary course of the Company if doing so would be in violation of applicable securities lawsits business.
5.6 5.5. The Investor understands that nothing the Preferred Shares are being offered and sold to it in reliance on specific exemptions from the Exchange Act Documentsregistration 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 Press Releasesrepresentations, this Agreement or any other 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 Preferred Shares.
5.6. The Investor and its advisors, if any, have been furnished with all publicly available materials presented relating to the Investor in connection with business, finances and operations of the purchase Company and such other publicly available materials relating to the offer and sale of the Shares constitutes legal, tax or investment adviceSecurities as have been requested by the Investor. The Investor and 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 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 consulted passed on or made any recommendation or endorsement of the Preferred Shares or the fairness or suitability of the investment in the Preferred Shares, nor have such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary authorities passed upon or appropriate in connection with its purchase endorsed the merits of the offering of the Preferred Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesShares and the 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 SharesShares and the Warrant; (ii) 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, Warrants 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 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 Warrant to purchase the number of Warrant Shares, each as set forth in Section 3 of the Stock and Warrant Purchase Agreement, Agreement relied only upon the Exchange Act Documents, the Press Releases Disclosure Documents and the 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 such 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.
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 that would permit an offering of the Shares, Warrant or Warrant Shares or possession or distribution of offering materials in connection with the issue of the Shares, Warrant or Warrant Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares, the Warrant or Warrant Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants with the Company not to make any 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 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 in Section 7.2(c).
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 (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 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 Common Stock, nor has the Investor, directly or indirectly, caused any person to engage in any short sales or similar transactions with respect to the Common Stock. Without limiting the foregoing, Investor will not use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Disclosure Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares and the Warrant constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesShares and the Warrant.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Inhibitex Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire, applicable securities laws which questionnaire is true, correct 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 timecomplete in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)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 in Section 7.2(c).
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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Investor understands that the Company acknowledges filed a registration statement on Form S-1 under the Securities Act on January 5, 2001, as amended on January 26, 2001 and agrees February 23, 2001, for a public offering of shares of the Company's Common Stock, that such public offering was never completed and has been abandoned and that such registration statement was withdrawn on March 19, 2001. The Investor does understands that the Shares have not make been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration requirements of the Securities Act pursuant to Section 4(2) or has Regulation D promulgated thereunder and, as a result, the Investor will not made any representations or warranties have the protection of Section 11 of the Securities Act (15 U.S.C. 77k) with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in purchase of the Stock Purchase Agreement or in the Investor QuestionnaireShares.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants (as of the date hereof) to, and covenants agrees with, the Company that: (i) the Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the Placement Agents 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 shares presenting an investment decision like that involved in the purchase of the 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has received and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the representations documents incorporated by reference therein and warranties the Offering Information and the representations, warranties, covenants and agreements of the Company contained herein. The Investor understands that its acquisition of in 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 such Investor to hold the Shares for any period of timePlacement Agreement.
5.2 The Investor acknowledges, represents and agrees that no (a) No action has been or will be taken in any jurisdiction outside the United States by the Company or the Placement Agents that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each , (b) if the Investor is outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (c) none of the Placement Agents is authorized to make or has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Shares, 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 Section 7.2(c)the Base Prospectus, any Issuer Free Writing Prospectus or the Prospectus Supplement.
5.4 (a) The Investor further represents is either an individual or an entity duly organized, validly existing and warrants to, in good standing under the laws of the jurisdiction of its organization 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic 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.
5.5 Investor will not use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the 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.
5.7 The Company acknowledges and agrees that 4.5 Since the time at which a Placement Agent first contacted the Investor does not make or about the Offering, the Investor has not made disclosed any representations or warranties with respect information regarding the Offering to any third parties (other than its legal, accounting and other advisors) and has not engaged in any transactions involving the securities of the Company (including, without limitation, any Short Sales 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 hereby other than those specifically set forth herein and (ii) not engage in this Sections 5 and 16(aany purchases or sales of the securities of the Company (including Short Sales), in each case prior to the Stock Purchase time that the transactions contemplated by this Agreement or are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in the Investor QuestionnaireCommon 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-US broker dealers or foreign regulated brokers.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (ia) the Investor is either (i) an “accredited investor” as defined in Regulation D under the Securities Act or (ii) a non-U.S. person as defined in Regulation S under the Securities Act and a qualified investor under applicable German or Swiss law who is acquiring the Securities in an offshore transaction, and the Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the SharesSecurities, 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 SharesSecurities; (iib) the Investor understands that the Securities are “restricted securities” and have not been registered under the Securities Act and is acquiring the number of Shares Securities set forth in Section 3 on the Signature Page of the Stock Purchase Subscription Agreement in the ordinary course of its business and for its own account and not with a view towards, or for investment only resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act (including pursuant to the Registration Statement (as defined in Section 7 below), and has no agreement or understanding, directly or indirectly, with no present intention of distributing any person to distribute any of such Shares or any arrangement or understanding with any other persons regarding the distribution of such SharesSecurities; (iiic) 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 Securities except in compliance with the Securities Act, applicable state and foreign securities laws and the respective rules and regulations promulgated thereunder; (ivd) the Investor has completed or caused to be completed and delivered to the Company the Investor Questionnaire and has answered all questions on the Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete in all material respects as of the date hereof and will be true, correct and complete in all material respects as of the Closing Date; (ve) 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 Securities or until the Company is no longer required to keep the Registration Statement effective; and (vif) the Investor has, in connection with its decision to purchase the number of Shares Securities set forth in Section 3 on the Signature Page of the Stock Purchase Subscription Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein; (g) the Investor has reviewed the Company’s Exchange Act Documents, and specifically has read and understands the “Risk Factors” contained therein and has considered those and other risks in deciding to purchase the Securities; and (h) the Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement. The Investor understands that its acquisition of the Shares 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 representations of the Investor, including the bona fide nature of the Investor’s investment intent intent, as expressed contained herein. Subject to compliance with The Investor acknowledges and agrees that a restrictive legend will be included on the Securities Actin substantially the form as follows: THE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, applicable securities laws and the respective rules and regulations promulgated thereunderAS AMENDED (THE “ACT”), nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timeAND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHETICATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR IN ACCORDANCE WITH AN EXEMPTION THEREFROM, IF AVAILABLE, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY AN OPINION OF COUNSEL FOR THE TRANSFEROR REASONABLY SATISFACTORY TO THE COMPANY, PROVIDED THAT NO SUCH OPINION OR ANY CONSENT BY THE COMPANY SHALL BE REQUIRED FOR PLEDGE OF THE SECURITIES PURSUANT TO A BONA FIDE MARGIN OR FINANCING ARRANGEMENT.
5.2 The Investor acknowledges, represents and agrees acknowledges that no action has been or will be taken in any jurisdiction outside the United States by the Company that would permit an offering of the SharesSecurities, or possession or distribution of offering materials in connection with the issue of the SharesSecurities, in any jurisdiction outside the United States where legal action action, including filings or registration, by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares Securities or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) this Agreement Agreement, when accepted by the Company, 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 use any of the 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.
5.6 5.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares Securities constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of SharesSecurities.
5.5 The Investor represents to the Company that, at all time during the Offering, the Investor has maintained in confidence all material non-public information relating to the Company received by the Investor from the Company or the Financial Advisors, and covenants that from the date hereof it will maintain in confidence all material non-public information regarding the Offering and the Corporate Presentation received by the Investor from the Company or the Financial Advisors until such information (a) is disclosed by the Company, (b) becomes generally publicly available other than through a violation of this provision by the Investor or its agents, or (c) is required to be disclosed in legal, regulatory or administrative proceedings or similar process; provided, however, that before making any disclosure in reliance on this Section 5.5, the Investor will give the Company at least fifteen (15) days prior written notice (or such shorter period as may be required by law) specifying the circumstances giving rise thereto and will furnish only that portion of the non-public information which is legally required and will exercise its commercially reasonable efforts to ensure that confidential treatment will be accorded any non-public information so furnished.
5.6 The Investor acknowledges that it has independently evaluated the merits of the transaction contemplated by this Agreement, that it has independently determined to enter into the transaction contemplated hereby, that it is not relying on any advice from or evaluation by any Other Investor, and that it is not acting in concert with any Other Investor in making its purchase of the Securities hereunder. The Investor acknowledges that the Investors have not taken any actions that would deem the Investors to be members of a “group” for purposes of Section 13(d) of the Exchange Act.
5.7 The Company Investor hereby confirms its understanding that it may not cover short sales made prior to the effective date of the Registration Statement with Securities registered for resale thereon. The Investor acknowledges and agrees that Investor it does not make or has not intend to cover short positions made any representations or warranties by it before the effective date with respect to Securities held by it and registered on the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor QuestionnaireRegistration Statement.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
(a) The Investor (i) 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 decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Investor 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 Shares; (ii) 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 Investor Questionnaire for use in preparation of the Registration Statement signature pages hereto and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (viiii) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of Investor Shares, has received (or otherwise had made available to it by the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States filing by the Company that would permit of an offering of electronic version thereof with the Shares, Commission) prior to or possession or distribution of offering materials in connection with the issue receipt of this Subscription Agreement, and is relying only upon the Disclosure Package (including the documents incorporated by reference therein) in making its decision to purchase the Investor Shares, in any jurisdiction .
(i) If the Investor is outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States States, it will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Investor Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (ii) no agent of the Company has been authorized to make and no such agent has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Investor Shares, 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 in Section 7.2(c)or incorporated by reference in the Base Prospectus or the Prospectus Supplement or as otherwise contemplated by this Subscription Agreement.
5.4 The Investor further represents and warrants to, and covenants with, the Company that (c) (i) the 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 (ii) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 (d) The Investor Shares to be purchased by the Investor hereunder will be acquired for the Investor’s own account, not use 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 acquired pursuant to this Agreement to cover any short position in compliance with applicable federal and state securities laws. If the Common Stock Investor is an affiliate of the Company if doing so would (within the meaning of Rule 144 promulgated under the Securities Act), the Investor acknowledges and understands that the Investor Shares may not be in violation 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 applicable securities lawsthe Securities Act.
5.6 (e) The Investor understands that nothing in the Exchange Act Documentsthis Subscription Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Investor Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Investor Shares.
5.7 The (f) Since the date on which the Company acknowledges and agrees that or its agents first contacted such Investor does not make or about the Offering, the Investor has not made directly or indirectly, nor has any representations person acting on behalf of or warranties pursuant to any understanding with respect the Investor, disclosed any information regarding the Offering to any third parties (other than its legal, accounting and other advisors) or engaged in any transactions in the securities of the Company (including, without limitations, any short sales (as defined in 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 engage in any transactions in the securities of the Company (including short sales) prior to the time that the transactions contemplated hereby other than those specifically set forth in by this Sections 5 and 16(a)Subscription Agreement are publicly disclosed.
(g) On or before the Closing Date, in the Stock Purchase Agreement or in the Investor Questionnairewill deliver to the Company an executed lock-up agreement in form and substance acceptable to the Company. The Investor understands that in connection with the Offering, the Other Investors will execute lock-up agreements that are the same in all material respects as the lock-up agreement executed by the Investor.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 4.1 The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; , (ii) 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; (ivb) 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 Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; Date and (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied only upon any or all of the Exchange Act Documentsfollowing: the Registration Statement, the Press Releases 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 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 such Investor to hold the Shares for any period of time.
5.2 4.2 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 any Placement Agent that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, Shares in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 . The Investor hereby covenants Placement Agents are not authorized to make and have not made any representation or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the Shares without complying with the provisions of this Agreement and without causing the prospectus delivery requirement under the Securities Act to be satisfied (whether Shares, except as set forth or incorporated by delivery of the Prospectus or pursuant to and reference 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, the Base Prospectus, the Prospectus Supplement or the Time of Sale Information (as set forth defined in Section 7.2(cthe Agency Agreement).
5.4 4.3 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 use any of the 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.
5.6 4.4 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The 4.5 Since the date on which the Company acknowledges and agrees that or the Placement Agent first contacted such Investor does not make or about the Offering, Investor has not made engaged in any representations or warranties with respect transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving the Company’s securities). Each Investor covenants that it will not engage in any transactions in the securities of the Company (including Short Sales) prior to the time that the transactions contemplated hereby other than those specifically set forth by this Agreement are publicly disclosed. Each Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in this Sections 5 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 16(aall 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), in the Stock Purchase Agreement and sales and other transactions through non-US broker dealers or in the Investor Questionnaireforeign regulated brokers.
Appears in 1 contract
Sources: Placement Agency Agreement (Auxilium Pharmaceuticals Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor is also knowledgeablehas the knowledge, sophisticated sophistication and experienced in makingexperience necessary to make, and is qualified to make decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement in the ordinary course of its business and 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; provided, however, that the foregoing shall not obligate the Investor to hold the Shares for any period of time or to otherwise restrict the disposition thereof; (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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act SEC Documents, the Press Releases other publicly available information and the 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 '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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees 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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each If the Investor is located or domiciled outside the United States will it agrees to comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 and 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 (whether by delivery of the Prospectus or pursuant to and in compliance with an exemption from such requirement)satisfied, if applicable, 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 Company, based on the advice of its counsel, determines that that, subject to the limitations of Section 7.2, it must suspend the use of the Prospectus forming a part of the Registration Statement, Statement until such time as set forth in Section 7.2(c)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 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 (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 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 use any not, prior to the effectiveness of the Shares acquired pursuant Registration Statement, sell, offer to this Agreement sell, solicit offers to cover buy, dispose of, loan, pledge or grant any short position in right with respect to (collectively, a "Disposition"), the Common Stock of the Company if doing so would be in violation of applicable securities lawsthe 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 right (including without limitation any put or call option) 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, relates to or derives any significant part of its value from the Common Stock of the Company.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor acknowledges, represents and warrants to, and covenants agrees with, the Company that: :
4.1 The Investor (ia) 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 decisions with respect to to, investments in shares securities presenting an investment decision like that involved in the purchase of the Investor 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 Shares; (iib) 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 and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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; Date and (vic) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase AgreementInvestor Shares, relied has received and is relying only upon the Exchange Act Documents, Disclosure Package (including the Press Releases and the 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 documents incorporated by such Investor to hold the Shares for any period of timereference therein).
5.2 The (a) If the Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction is outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor 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 Investor Shares or has in its possession or distributes any offering material, in all cases at its own expense.
5.3 The Investor hereby covenants expense and (b) no agent of the Company has been authorized to make and no such agent has made any representation, disclosure or use of any information in connection with the Company not to make any issue, placement, purchase and sale of the 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)Investor Shares, 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 in Section 7.2(c)or incorporated by reference in the Base Prospectus or the Prospectus Supplement or as otherwise contemplated by this Agreement.
5.4 (a) 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 (iib) 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 agreements or contribution that may be violative of the Investors herein may be legally unenforceablepublic policy underlying any law, rule or regulation (including any federal or state securities law, rule or regulation).
5.5 4.4 The Investor Shares to be purchased by the Investor hereunder will be acquired for the Investor’s own account, not use as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Act, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the 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 acquired pursuant to this Agreement to cover any short position in compliance with applicable federal and state securities laws. If the Common Stock Investor is an affiliate of the Company if doing so would (within the meaning of Rule 144 promulgated under the Act), the Investor acknowledges and understands that the Investor Shares may not be in violation resold by the Investor unless such resale is registered under the Act or such resale is effected pursuant to a valid exemption from the registration requirements of applicable securities lawsthe Act.
5.6 4.5 The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press ReleasesProspectus, this Agreement the Disclosure Package or any other materials presented to the Investor in connection with the purchase and sale of the Investor Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Investor Shares.
5.7 The 4.6 Since the date on which the Company acknowledges and agrees that or its agents first contacted such Investor does not make or about the Offering, the Investor has not made any representations or warranties maintained information about the Offering in confidence (other with respect to disclosures to the Investor’s advisors who are under a legal obligation of confidentiality) and has not engaged in any transactions in the securities of the Company. The Investor covenants that it will not engage in any transactions in the securities of the Company or disclose any information about the Offering (other than to its advisors who are under a legal obligation of confidentiality) prior to the time that the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in by the Stock Purchase Agreement or in Agreements are publicly disclosed by the Investor QuestionnaireCompany.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the Sharesnumber 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 SharesShares and the Warrants; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of and the Stock Purchase Agreement Warrants 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 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 such 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 Investor Questionnaire attached hereto for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing Date and the Filing Date; (v) the Investor will notify the Company immediately of any change in any of such information until such time as the such Investor has sold all of its the Shares and the Warrant Shares owned by it or until the Company is no longer required to keep the Registration Statement effectiveeffective (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 set forth in Section 3 of and the Stock Purchase Agreement, Warrants relied only upon the Exchange Act Documents, the Press Releases SEC Documents and the 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 such the Investor to hold the Shares, the Warrants or the Warrant Shares for any period of time.
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 that would permit an offering of the Shares, the Warrants or the Warrant Shares or possession or distribution of offering materials in connection with the issue of the 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. Each Any Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers 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.
5.3 The Investor hereby covenants with the Company not to make any sale of the Shares, the Warrants and the Warrant Shares without complying with the provisions of this the Agreement and without 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 the 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 in Section 7.2(c).
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 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 (ii) 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 During the last thirty (30) days prior to the date hereof, neither such Investor will not use 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 acquired pursuant and Warrants, or (z) is subject to this Agreement such Investor’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading Affiliates”) has, directly or indirectly, effected or agreed to cover effect 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 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 Common Stock Company’s securities (each, a “Prohibited Transaction”). Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the effective date of the Company if doing so would be Registration Statement or (iii) the Required Effective Date, such Investor shall not, and shall cause its Trading Affiliates not to, (A) engage, directly or indirectly, in violation a Prohibited Transaction, or (B) effect any sale, assignment, pledge, hypothecation, put, call, transfer or other disposition of applicable securities lawsany Shares and Warrants.
5.6 The Investor understands that nothing in the Exchange Act SEC Documents, the Press Releases, this 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 as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Sharesthe Shares and the Warrants.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Securities Purchase Agreement (Advanced Life Sciences Holdings, Inc.)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 investments in shares presenting an investment decision like that involved in the purchase of the Preferred 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 Preferred Shares; (ii) the Investor is acquiring the number of Preferred 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 Preferred Shares or any arrangement or understanding with any other persons regarding the distribution of such Preferred 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 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 or until the Company is otherwise no longer required to keep the Registration Statement effective; and (vi) the Investor has, in connection with its decision to purchase the number of Preferred Shares set forth in Section Paragraph 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases Documents and the representations and warranties of the Company contained herein. The Investor understands that its neither this Offering nor the acquisition of the Shares has not Securities 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. Subject to compliance with the Securities Act, applicable securities laws herein and the respective rules information provided in the Investor’s Investor Questionnaire. Investor has completed or caused to be completed and regulations promulgated thereunderdelivered to the Company the Investor Questionnaire, nothing contained herein shall be deemed a representation or warranty by such Investor to hold the Shares for any period of timewhich questionnaire is true, correct and complete in all material respects.
5.2 The Investor acknowledges(other than individuals) is an entity duly organized, represents validly existing and agrees that no action has been or will be taken in any jurisdiction outside good standing under the United States by the Company that would permit an offering laws of the Shares, or possession or distribution jurisdiction of offering materials in connection its organization with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws full power and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
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 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 has 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 (ii) 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 limited by applicable federal or state securities laws.
5.3 The Investor is not purchasing the Preferred Shares as a result of any advertisement, article, notice or other communication regarding the Preferred Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general principles of equity solicitation or general advertisement.
5.4 The Investor is (regardless of whether such enforceability is considered in a proceeding in equity or at lawi) acquiring the Preferred Shares and except as the indemnification agreements (ii) upon conversion of the Investors herein may be legally unenforceablePreferred Shares will acquire the Conversion Shares, in each case, for its own account and 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 Preferred Shares 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 Securities Act. The Investor is acquiring the Preferred Shares hereunder in the ordinary course of its business.
5.5 The Investor will not use any 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 Shares acquired pursuant Investor set forth herein in order to this Agreement to cover any short position in determine the Common Stock availability of such exemptions and the eligibility of the Company if doing so would be in violation of applicable securities lawsInvestor to acquire the Securities.
5.6 The Investor understands that nothing in the Exchange Act Documentsand its advisors, the Press Releasesif any, this Agreement or any other have been furnished with all publicly available materials presented relating to the Investor in connection with business, finances and operations of the purchase Company and such other publicly available materials relating to the offer and sale of the Shares constitutes legal, tax or investment adviceSecurities as have been requested by the Investor. The Investor has consulted and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such legalinquiries nor any other due diligence investigations conducted by the Investor or its advisors, tax 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 advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase the Securities involves a high degree of Sharesrisk.
5.7 The Company acknowledges and agrees Investor understands that Investor does not make no United States federal or state agency or any other government or governmental agency has not passed on or made any representations recommendation or warranties with respect to endorsement of the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), Securities or the fairness or suitability of the investment in the Stock Purchase Agreement Securities, nor have such authorities passed upon or in endorsed the Investor Questionnairemerits of the offering of the Securities.
Appears in 1 contract
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants to, and covenants with, the Company that: (i) 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 decisions with respect to investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; (ii) the Investor is acquiring the number of Shares set forth in Section 3 of on the Stock Purchase Agreement 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 Investor Questionnaire signature page hereto for use in preparation of the Registration Statement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase Agreementsignature page hereto, relied only upon the Exchange Act Documents, the Press Releases Placement Memorandum and the 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 's investment intent as expressed herein. Subject Investor has completed or caused to compliance with be completed and delivered to the Securities ActCompany the Investor Questionnaire attached as Exhibit B to the Placement Memorandum, applicable securities laws which questionnaire is true 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 timecorrect in all material respects.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 Agreement, including Section 7.2 hereof, and without effectively 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)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 in Section 7.2(c).
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 (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 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 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press ReleasesPlacement Memorandum, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract
Sources: Stock Purchase Agreement (Neurocrine Biosciences Inc)
Representations, Warranties and Covenants of the Investor. 5.1 2.1. The Investor represents and warrants to, and covenants with, the Company that: that (ia) 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 decisions with respect to to, investments in shares presenting an investment decision like that involved in the purchase of the 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 Shares; , (ii) 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; (ivb) the Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in preparation of the Registration Statement Prospectus Supplement and the answers thereto are true, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; Date and (vc) 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 hasInvestor, in connection with its decision to purchase the number of Shares set forth in Section 3 of on the Stock Purchase AgreementSignature Page, relied has reviewed the Disclosure Package and is relying only upon the Exchange Act Documents, the Press Releases Disclosure Package and the 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 such Investor to hold the Shares for any period of time.
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 that would permit an offering of the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required2.2. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 The Investor further represents and warrants to, and covenants with, the Company that (ia) 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 (iib) 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 use any of the 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.
5.6 2.3. The Investor understands that nothing in the Exchange Act Documentsthis Agreement, the Press Releases, this Agreement Prospectus or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 2.4. The Company acknowledges Investor represents, warrants and agrees that that, since the earlier to occur of (i) the date on which the Company first contacted such Investor does not make or about the Offering and (ii) the date of this Agreement, it has not made engaged in any representations or warranties with respect transactions in the securities of the Company in violation of securities laws (including, without limitation, any short sales involving the Company’s securities). The Investor covenants that it will not engage in any transactions in the securities of the Company (including short sales) prior to the time that the transactions contemplated hereby other than those specifically set forth by this Agreement are publicly disclosed. The Investor agrees that it will not use any of the Shares acquired pursuant to this Agreement to cover any short position in this Sections 5 and 16(athe 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 (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 Stock Purchase Agreement Exchange Act) and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or in foreign regulated brokers.
2.5. Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Investor Questionnaireherein will survive the execution of this Agreement, the delivery to the Investor of the Shares being purchased and the payment therefor.
Appears in 1 contract
Sources: Subscription Agreement (Insmed Inc)
Representations, Warranties and Covenants of the Investor. 5.1 4.1 INVESTOR KNOWLEDGE AND STATUS. The Investor represents and warrants to, and covenants with, the Company that: (i) the Investor is an “"accredited investor” " as defined in Regulation D under the Securities Act and the Investor Act, is also knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to to, investments in shares securities presenting an investment decision like similar to that involved in the purchase of the 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 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 Section paragraph 3 of the Stock Securities Purchase Agreement in the ordinary course of its business and for its own account for investment only and with only, has no present intention of distributing any of such Shares or any and has no arrangement or understanding with any other persons regarding the distribution of such SharesShares (this representation and warranty not limiting the Investor's right to sell Shares 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 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 in paragraph 4 of the 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, true and correct and complete as of the date hereof and will be true, true and correct and complete as of the Closing Date; (v) the Investor will notify the Company immediately 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section paragraph 3 of the Stock Securities Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the representations and warranties of the Company contained hereinherein and the information contained in the SEC Reports. The Investor understands that its acquisition the issuance of the Shares to the Investor has not been registered under the Securities Act Act, or registered or qualified under any state securities law law, in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things, the bona fide nature of representations made by the Investor’s investment intent as expressed hereinInvestor in this Agreement. Subject to compliance with No person (including without limitation 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 such Investor to hold the Shares for any period of time.
5.2 The Investor acknowledges, represents and agrees that no action has been or will be taken in any jurisdiction outside the United States Placement Agent) is authorized by the Company to provide any representation that would permit an offering of is inconsistent with or in addition to those contained herein or in the Shares, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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)SEC Reports, 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 in Section 7.2(c).
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 (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 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 use any of the 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.
5.6 The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges and agrees that Investor does not make or has not made received or relied on any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Sections 5 and 16(a), in the Stock Purchase Agreement or in the Investor Questionnairesuch representations.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ilinc Communications Inc)
Representations, Warranties and Covenants of the Investor. 5.1 The Investor represents and warrants toto the Company, as of the date hereof and as of the Closing Date, and covenants withagrees with the Company, the Company that: as follows:
(a) The Investor (i) has had full access to the Investor 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 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 investments in shares presenting Shares representing an investment decision like that involved in the purchase of the 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 Shares; (iiiii) 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, or an account for over which it has investment only discretion, and with no present intention of distributing does not have any of such Shares agreement or any arrangement or understanding with any other persons regarding the distribution of such Shares; (iii) the Investor will notunderstanding, directly or indirectly, offer, sell, pledge, transfer with any person or otherwise dispose of (or solicit any offers entity to buy, purchase or otherwise acquire or take a pledge of) distribute 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 Investor Questionnaire for use in preparation of the Registration Statement and the answers thereto are true, correct and complete as of the date hereof and will be true, correct and complete as of the Closing 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 (vi) the Investor has, in connection with its decision to purchase the number of Shares set forth in Section 3 of the Stock Purchase Agreement, relied only upon the Exchange Act Documents, the Press Releases and the 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 such Investor to hold the Shares for any period of timeShares.
5.2 (b) The Investor acknowledgesInvestor, represents and agrees that no action has been or will be taken in any jurisdiction if outside the United States by the Company that would permit an offering of the SharesStates, or possession or distribution of offering materials in connection with the issue of the Shares, in any jurisdiction outside the United States where legal action by the Company for that purpose is required. Each Investor outside the United States will comply with all applicable laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or distributes any offering material, in all cases at its own expense.
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 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 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 in Section 7.2(c).
5.4 c) The Investor further represents and warrants to, and covenants with, 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 (iiiii) 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 the indemnification agreements of the Investors herein may be legally unenforceable).
5.5 Investor will not use any of the 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.
5.6 (d) The Investor understands that nothing in the Exchange Act Documents, the Press Releases, this Agreement or Company has not provided it with any other materials presented to the Investor in connection with the purchase and sale of the Shares constitutes legal, tax or investment adviceadvice in connection with its purchase of Shares. The Investor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of Shares.
5.7 The Company acknowledges (e) From and agrees after obtaining the knowledge of the sale of the Shares contemplated hereby, neither the Investor nor any person or entity acting on behalf of, or pursuant to any understanding with or based upon any information received from the Investor, has taken, and prior to the public announcement of the transaction shall not take, any action that has caused or will cause the Investor does to have, directly or indirectly, sold or agreed to sell any shares of Preferred Stock or shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), effected any short sale, whether or not make or has not made against the box, established any representations or warranties “put equivalent position” (as defined in Rule 16a-1(h) under the ▇▇▇▇ ▇▇▇) with respect to the transactions contemplated hereby Preferred Stock or the Common Stock, granted any other than those specifically right (including, without limitation, any put or call option) with respect to the 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 Preferred 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 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.
(f) The Investor represents that, except as set forth below, (i) it has had no position, office or other material relationship within the past three years with the Company or persons known to it to be affiliates of the Company, (ii) it is not a, and it has no direct or indirect affiliation or association with any, FINRA member or an Associated Person (as such term is defined under FINRA Membership and Registration Rules Section 1011) as of the date hereof, and (iii) neither it nor any group of investors (as identified in this Sections 5 and 16(aa public filing made with the Commission) of which it is a member, acquired, or obtained the right to acquire, 20% 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, write “none.” If left blank, response will be deemed to be “none.”), in the Stock Purchase Agreement or in the Investor Questionnaire.
Appears in 1 contract