Subscriber’s Representations, Warranties and Agreements. To induce Pubco to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and Pubco and acknowledges and agrees with the Issuer and Pubco, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii) result in any violation of any statute or any judgment, order, rule, or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring the Shares only for its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that as a result of the transfer restrictions described herein, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, Pubco, the Company, the Placement Agents (as defined below) or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 3 contracts

Sources: Subscription Agreement (KORE Group Holdings, Inc.), Subscription Agreement (KORE Group Holdings, Inc.), Subscription Agreement (Cerberus Telecom Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco to issue~~ the ~~Shares to Subscriber~~issuance of the Subscribed Shares, Subscriber hereby represents and warrants to ~~the Issuer~~ each of FEAC and ~~Pubco~~ Newco and acknowledges and agrees with ~~the Issuer~~ each of FEAC and ~~Pubco~~Newco, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of ~~the Issuer~~ FEAC and ~~Pubco~~Newco, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii) result in any violation of any statute or any judgment, order, rule, or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription AgreementMaterial Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act), (b) is an Institutional Account as defined in FINRA Rule 4512(c) and (c) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined~~ has exercised independent judgment in ~~FINRA Rule 4512(c)~~evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber understands that the offering of the Subscribed Shares meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is ~~not~~ aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the investor presentation provided by FEAC (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an ~~entity formed for~~ investment in the ~~specific purpose of acquiring the~~ Subscribed Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ Newco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates~~ the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or ~~book entries representing~~ resold except as permitted under the ~~Shares~~ Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (ii) shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 10 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A promulgated under~~ 144 until at least one year from the ~~Securities Act~~filing by Newco of the “Form 10 information” after the Closing Date and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees ~~that~~ that, pursuant to the Assumption, Subscriber ~~is purchasing~~ will purchase the Subscribed Shares directly from ~~Pubco~~Newco. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ~~the Issuer~~FEAC, ~~Pubco~~Newco, ~~the Company~~enGene, the Placement Agents ~~(as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, employees, partners, agents or ~~directors~~representatives, expressly or by implication, other ~~than~~ than, in the case of FEAC and Newco only, those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement. Subscriber understands that certain financial information (whether historical or in the form of financial forecasts or projections) of FEAC, Newco and enGene have been prepared and reviewed solely by FEAC, Newco, enGene and their respective officers, directors and employees, as applicable, and ~~Subscriber is~~ have not ~~relying on~~ been reviewed by the Placement Agents or any ~~representations~~outside party or, ~~warranties or covenants other than those~~ except for the financial statements as expressly set forth in the Registration Statement (as defined below), certified or audited by an independent third-party auditor or audit firm. 2.1.7. Subscriber does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the date hereof until the Closing Date or the earlier termination of this Subscription ~~Agreement~~Agreement such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or short sale positions with respect to the securities of FEAC. ~~2.1.7~~ 2.1.8. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants~~ (ii) a plan, an individual retirement account or other arrangement that ~~its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an employee benefit plan (such as a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”) or (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.9. If Subscriber is or is acting on behalf of a Plan, Subscriber represents and warrants that none of FEAC, Newco, enGene or any ~~applicable similar law~~of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. ~~2.1.8~~ 2.1.10. Subscriber acknowledges that no disclosure or offering document has been prepared or reviewed by SVB Securities LLC and UBS Securities LLC (collectively, in their capacity as placement agents, the “Placement Agents”) or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing in connection with the offer and sale of the Subscribed Shares. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of FEAC and Newco contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including the Placement Agents), other than ~~the Issuer or Pubco~~ FEAC, Newco, enGene and their respective representatives concerning ~~the Issuer or Pubco~~ FEAC, Newco, enGene or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that ~~Subscriber~~ ▇▇▇▇▇▇▇▇▇▇ has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to ~~the Issuer~~FEAC, ~~Pubco~~Newco, ~~the Company~~enGene, and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription and the Transactions, have had the full opportunity to ask such questions, including on the financial information, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber ~~has such knowledge~~ represents and ~~experience in~~ warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Transactions, the Subscribed Shares and the business, condition (financial and ~~business matters as~~ otherwise), management, operations, properties and prospects of FEAC, Newco and enGene including but not limited to ~~be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting~~all business, legal, regulatory, accounting, credit and tax ~~advice as~~ matters. Subscriber further acknowledges that Subscriber has ~~considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that~~ not relied upon the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together Placement Agents in connection with ~~any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of~~ Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits due diligence review of the offering of the Subscribed Shares ~~or made any findings or determination as to the fairness~~ and of ~~an investment in the Shares~~FEAC, Newco and enGene. ~~2.1.13~~ 2.1.11. Subscriber ~~represents~~ acknowledges and ~~warrants~~ agrees that ~~Subscriber~~ (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) acting as an underwriter or in any other ~~Executive Order issued~~ capacity in connection with the Subscription and is not and shall not be construed as a fiduciary for Subscriber, FEAC, Newco, enGene or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription and the Transactions, in each case, to Subscriber and such advice or recommendation is not necessary or desired (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the ~~President~~ Subscription and the Transactions or any of the ~~United States and administered by OFAC~~ documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~collectively~~with respect to any person) or any thereof, ~~“OFAC Lists”),~~ or (ii) ~~owned~~ the business, condition (financial and otherwise), management, operations, properties or ~~controlled by, or acting on behalf~~ prospects of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other ~~country~~ matter concerning, FEAC, Newco, enGene, the Subscription or ~~territory embargoed or subject to substantial trade restrictions by~~ the ~~United States~~Transactions, (ivd) ~~a Designated National as defined in~~ the ~~Cuban Assets Control Regulations~~Placement Agents, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agents or their respective affiliates, shall have no liability or obligation (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)including without limitation, ~~and (ii) it has not relied on any investment advice from the Transaction Parties~~ for or with respect to any ~~decision to acquire~~losses, ~~continue to hold~~claims, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934damages, ~~as amended (the “Exchange Act”)~~obligations, ~~or any successor provision) acting for the purpose of acquiring~~penalties, ~~holding~~judgments, ~~or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not~~awards, ~~nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber~~liabilities, ~~directly or indirectly offer~~costs, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aexpenses

Appears in 3 contracts

Sources: Subscription Agreement (Forbion Growth Sponsor FEAC I B.V.), Subscription Agreement (Forbion European Acquisition Corp.), Business Combination Agreement (Forbion European Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ the SPAC and acknowledges and agrees with the Issuer and ~~Pubco~~the SPAC, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5 Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Subscribed Shares shall contain a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ SPAC or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer and the SPAC contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and the SPAC and their respective representatives concerning the Issuer or ~~Pubco~~ the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco~~Tempo, the ~~Company,~~ SPAC and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial or otherwise), management, operations, properties and prospects of the Issuer, Tempo, and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9 Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Tempo, the SPAC or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, the SPAC or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the SPAC or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any applicable state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco or~~ Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.15 Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial interes

Appears in 3 contracts

Sources: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Foley Trasimene Acquisition Corp.), Subscription Agreement (Fidelity National Financial, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco and acknowledges~~ Holdings and agrees with the ~~Issuer~~ Company and ~~Pubco, as of the date hereof and as of the Closing,~~ Holdings as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~The~~ Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, ~~each owner of such account is a qualified institutional buyer, and~~ the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Company, Holdings, or ~~its representative. Subscriber has~~ a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Company or ~~its representative~~Holdings. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that ~~the purchase and sale of the Shares hereunder meets~~ it (i) ~~the exemptions from filing under FINRA Rule 5123(b)(1)(A)~~ is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the ~~institutional customer exemption under FINRA Rule 2111(b)~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject~~ On the date the Purchase Price will be required to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ be funded pursuant to Section ~~4975~~ 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the ~~Code~~ Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or ~~an employee benefit plan~~ any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~governmental plan (as defined in Section 3(32~~direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~of ERISA)~~under the Securities Act. 2.1.16 No broker, ~~a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA),~~ finder or other ~~plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions~~ financial consultant has acted on behalf of ~~ERISA~~ Subscriber in connection with this Subscription Agreement or the ~~Code, or an entity whose underlying assets are considered~~ transactions contemplated hereby in such a way as to ~~include “plan assets” of~~ create any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied liability on the ~~Issuer~~ Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or ~~Pubco~~ Schedule 13G (or ~~any of their respective affiliates (~~amendments thereto) filed by such Subscriber with the ~~“Transaction Parties”) as the Plan’s fiduciary~~ Commission with respect to ~~its decision~~ the beneficial ownership of the securities of the Company prior to ~~acquire and hold~~ the ~~Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)~~date hereof, ~~and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as ~~defined in 31 C.F.R. Part 800.244) will acquire a~~de

Appears in 3 contracts

Sources: Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933 (as amended, the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares, and (ii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agent or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.18 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or

Appears in 3 contracts

Sources: Subscription Agreement (Collective Growth Corp), Subscription Agreement (Collective Growth Corp), Put Option Agreement (Collective Growth Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) if an Israeli resident or entity, is an ~~institutional account as defined~~ investor in ~~FINRA Rule 4512(c)~~one of the categories listed in the First Addendum to the Israeli Securities Law, 5728-1968 (the “Securities Law”) and set forth in Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor who is investing in the Shares, (iii) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the Securities Law, and that the Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under the Securities Law, and ~~that~~ (C) any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by or on behalf of the Issuer. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that Credit Suisse Securities (USA) LLC and ▇▇▇▇▇ and Company, LLC (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares (including information related to the Issuer, the Company, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives (including the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agents or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in,~~ or a ~~citizen, national,~~ person or entity otherwise blocked by any OFAC sanctions program or the ~~government~~U.S. Department of State. Subscriber agrees to provide law enforcement agencies, ~~including any political subdivision~~if requested thereby, ~~agency~~such records as required by applicable law, ~~or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject~~ provided that Subscriber is permitted to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bankdo so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ If Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) ~~in which the national or subnational governments of a single foreign state have~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) in the Issuer, no national or subnational government of a single foreign state has a substantial interest (as defined in 31 C.F.R. § 800.244) in the Subscriber. No Subscriber who is a foreign person (as defined in 31 C.F.R. § 800.224) will acquire acontrol (as defin

Appears in 3 contracts

Sources: Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (ION Acquisition Corp 1 Ltd.)

Appears in 3 contracts

Sources: Merger Agreement (Good Works Acquisition Corp.), Subscription Agreement (Good Works Acquisition Corp.), Subscription Agreement (Good Works Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ the SPAC and acknowledges and agrees with the Issuer and ~~Pubco~~the SPAC, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5 Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Subscribed Shares shall contain a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ SPAC or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer and the SPAC contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and the SPAC and their respective representatives concerning the Issuer or ~~Pubco~~ the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco~~Paysafe, the ~~Company,~~ SPAC and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Paysafe, and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9 Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, the SPAC or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the SPAC or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any applicable state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco or~~ Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.15 Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial in

Appears in 3 contracts

Sources: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Foley Trasimene Acquisition II), Subscription Agreement (Fidelity National Financial, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities ~~Act~~Act except as otherwise required by this Subscription Agreement. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in the case of each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that as a result of the transfer restrictions ~~described~~ set forth herein, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, ~~officers~~ officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company~~Company and the Transactions, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that Credit Suisse Securities (USA) LLC (“Credit Suisse”), EarlyBirdCapital, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated and each of their respective affiliates (collectively, the “Placement Agents” and each, a “Placement Agent”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agents or any of the respective Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares, and (ii) none of the Placement Agents nor any of their respective affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber understands and acknowledges that Credit Suisse is also acting as an equity capital markets advisor to the Company or its affiliates in relation to the Transactions. Subscriber understands and acknowledges that Credit Suisse’s role as equity capital markets advisor to the Company or its affiliates may give rise to potential conflicts of interest or the appearance thereof. 2.1.9 Subscriber ~~became aware of this offering~~ acknowledges that none of the ~~Shares solely by means of direct contact between Subscriber and the Issuer~~ Placement Agents has acted as its financial advisor or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other meansfiduciary. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such financial, accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the ~~Issuer or Pubco or~~ Issuer, the Company, nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Except (i) as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber with the Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s common stock prior to the date hereof and (ii) as a result of the entry into this Subscription Agreement, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.18 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Issuer promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 5

Appears in 3 contracts

Sources: Subscription Agreement (Property Solutions Acquisition Corp.), Subscription Agreement (Property Solutions Acquisition Corp.), Subscription Agreement (Property Solutions Acquisition Corp.)

Appears in 2 contracts

Sources: Subscription Agreement (Ads-Tec Energy Public LTD Co), Subscription Agreement (European Sustainable Growth Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Closing Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. Subscriber understands and acknowledges that the purchase of the Securities pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under~~ the Securities ~~Act,~~ or ~~(iii) pursuant~~ an opinion of counsel satisfactory to ~~another~~ the Company that such registration statement is not required and an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and ~~such~~ the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by ▇▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (the “Placement Agent”) and that the Placement Agent and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Securities or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, the Securities and the offer and sale of the Securities. The information provided to the Subscriber is preliminary and subject to change, and any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Closing Securities hereunder. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent or ~~its representative. Subscriber has~~ directly from the Company as a result of a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the ~~Shares~~ Securities hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any~~Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Closing Securities were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act~~Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below)~~. 2.1.16 The~~ , except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ direct beneficial owner of ~~such~~ Subscriber’s ~~assets and~~ securities for purposes of Rule 506(d) under the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 2 contracts

Sources: Subscription Agreement (Nuvve Holding Corp.), Subscription Agreement (Newborn Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco~~ Company and acknowledges and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ability or legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or, if Subscriber is not an individual, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ability or legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act (~~Act. Subscriber has completed Schedule A following the signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~on Schedule I attached hereto)~~contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or ~~book entries~~ book-entry notations representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the~~ Company, ~~the Placement Agents (as defined below)~~ Sabre or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Company expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I~~ As of the ~~Employee Retirement Income Security Act~~ date of ~~1974, as amended (“ERISA”)~~this Subscription Agreement, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the ~~Issuer, Pubco, the Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transaction. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber ~~became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer~~ and/or its investment manager or ~~its representative. Subscriber~~ adviser has a pre-existing substantive relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, ~~and~~ Sabre and/or H2C Securities Inc. (the “Placement Agent”). The Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer or its representative. Subscriber did not become aware of this offering of~~ Company, Sabre and/or the ~~Shares~~Placement Agent, ~~nor were~~ and the Shares were not offered to ~~Subscriber,~~ Subscriber by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. Subscriber acknowledges that (i) it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, the Placement Agent or Sabre), except for the representations and warranties of the Company expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Company, (ii) the Placement Agent and each of its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Shares, or the accuracy, completeness, or adequacy of any information supplied to Subscriber by the Company, and (iii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber ~~understands and~~ acknowledges that the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase ~~and sale~~ of the ~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~Shares. 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a ~~person,~~ person that is named on an the OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of ~~Ukraine,~~ Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to use reasonable best efforts to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is, or is acting (directly or indirectly) on behalf of, an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) ~~it has not relied on~~ none of the ~~Issuer or Pubco or~~ Company, Sabre nor any of their respective employees, representatives or affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares; (ii) the Subscription complies with the terms of the Plan’s governing instruments and all applicable requirements of ERISA, the Code and all applicable Similar Laws; and (iii) to the extent applicable, the decision to invest in the Shares has been made at the recommendation or direction of an “independent fiduciary” (“Independent Fiduciary”) within the meaning of U.S. Code of Federal Regulations 29 C.F.R. Section 2510.3 21(c), as amended from time to time (the “Fiduciary Rule”) who is (A) independent of the Transaction Parties; (B) capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies (within the meaning of the Fiduciary Rule); (C) a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to Subscriber’s investment in the Shares and is responsible for exercising independent judgment in evaluating the investment in the Shares; and (D) aware of and acknowledges that (I) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with Subscriber’s investment in the Shares, and (II) the Transaction Parties have a financial interest in Subscriber’s investment in the Shares on account of the fees and other remuneration they expect to receive in connection with the Subscription and the Transaction. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) with respect to the beneficial ownership of the Company’s Class A common stock at any time or from time to time, Subscriber is not ~~currently (and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3~~) or Section 14(d)(2~~) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) holding or acquiring more than five percent (5%) of the Company’s outstanding Class A common stock, including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act); provided that Subscriber makes no representation with respect to whether Subscriber, together solely with its affiliates, would constitute a “group” for the purposes of this Section 2.1.15. 2.1.16 ~~The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at~~ At the ~~Subscriber’s direction or pursuant to any understanding with~~ time of funding the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber Applicable Purchase Price prior to the ~~date hereof or (ii) acquired by~~ Closing, Subscriber will have sufficient funds to pay the ~~Subscriber after the date hereof other than~~ Applicable Purchase Price pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSection 3.1. 2.1.17 ~~No foreign person (as defined~~ To the extent Subscriber is one of the covered persons identified in ~~31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~Rule 506(d)(1), S

Appears in 2 contracts

Sources: Subscription Agreement (Healthcare Merger Corp.), Subscription Agreement (Healthcare Merger Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by ~~(i)~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and ~~(ii)~~ principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or ~~(iii)~~ any of its subsidiaries or result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber ~~(i)~~ is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, an Institutional Account as defined in FINRA Rule 4512(c) or a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, ~~(ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and ~~(iv) is~~ not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except ~~(i)~~ to ~~Pubco~~ the Issuer or a subsidiary thereof, ~~(ii)~~ to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or ~~(iii)~~ pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses (i~~cases ‎(i) and ~~(iii~~‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ageneral

Appears in 2 contracts

Sources: Subscription Agreement (Biodesix Inc), Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares~~ Units to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: ~~2.1.1~~ (i) If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ (ii) If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (iA) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iiB) principles of equity, whether considered at law or equity. ~~2.1.3~~ (iii) The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (iA) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (iiB) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (~~iii~~C) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (iv) Subscriber (iA) if not an Israeli resident or entity, is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (iiB) if an Israeli resident or entity, is an ~~institutional account as defined~~ investor in ~~FINRA Rule 4512(c)~~one of the categories of investors listed in the First Addendum to the Israeli Securities Law and set forth in Schedule I and satisfies the applicable requirements set forth on Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor that is investing in the Units and agrees to such implications, (~~iii~~C) is acquiring the ~~Shares~~ Units only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Units as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer,~~ buyer or an institutional accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and ~~(iv) is~~ not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act~~ Units in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Units. ~~2.1.5~~ (v) Subscriber understands that the ~~Shares~~ Units are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the Securities Law, and that the ~~Shares~~ Units have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the ~~Shares~~ Units and the underlying securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i1) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii2) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (~~iii~~3) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i1) and (~~iii~~3), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Units and ~~that~~ the underlying securities may be subject to transfer restrictions under the Securities Law, and (C) any certificates or book entries representing the ~~Shares~~ Units and the underlying securities shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Units and the underlying securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Units and the underlying securities will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Units. ~~2.1.6~~ (vi) Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Units directly from ~~Pubco~~the Issuer. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company~~SPAC, the Placement Agents ~~(as defined below)~~ or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. Subscriber further acknowledges that the Placement Agents and their affiliates may have acquired non-public information with respect to the Issuer and the SPAC which Subscriber agrees need not be provided to it. ~~2.1.7~~ (vii) If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the ~~Shares~~ Units will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ (viii) In making its decision to purchase the ~~Shares~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) and the Issuer’s express representations and ~~Pubco’s representations,~~ warranties ~~and agreements~~ in Section ~~2.2~~ ‎3(b) hereof. Without limiting the generality of the foregoing, Subscriber has not otherwise relied on any representations, warranties, statements or other information provided by ~~anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares~~anyone. Subscriber acknowledges and agrees that Subscriber (A) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Units (including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ SPAC and the ~~Transactions and~~ Transactions), (B) has made its own assessment and (C) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Units. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by or on behalf of the Issuer. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Units. Subscriber acknowledges that Barclays Capital Inc. and Cantor F▇▇▇▇▇▇▇▇▇ & Co. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the SPAC or the Units or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the SPAC. Subscriber acknowledges that (1) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Units (including information related to the Issuer, the SPAC, or the Units) and the offer and sale of the Units, and (2) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Units. Subscriber acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Units hereunder. Subscriber further acknowledges and agrees that none the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing shall have any liability to Subscriber, or to any other subscriber, pursuant to, arising out of or relating to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the PIPE Securities, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the PIPE Securities or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by the Issuer, the SPAC, the Placement Agents or any Non-Party Affiliate concerning the Issuer, the SPAC, the Placement Agents, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of the Issuer, the SPAC, the Placement Agents or any of the Issuer’s, the SPAC’s or the Placement Agents’ controlled affiliates or any family member of the foregoing. ~~2.1.9~~ (ix) Subscriber became aware of this offering of the ~~Shares~~ Units solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents, the Issuer or ~~its representative. Subscriber has~~ the SPAC as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ Issuer, the SPAC or ~~its representative~~their respective representatives (including the Placement Agents), and the ~~Shares~~ Units were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the Issuer or ~~its representative~~the SPAC. Subscriber did not become aware of this offering of the ~~Shares~~Units, nor were the ~~Shares~~ Units offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Units (iA) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (iiB) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state or foreign securities laws. ~~2.1.10~~ (x) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Units. Subscriber 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~~Units, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the SPAC or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the purchase and sale of the ~~Shares~~ Units hereunder meets (iA) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (iiB) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~(xi) Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Units and determined that the Units are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ (xii) Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ foreign agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Units or made any findings or determination as to the fairness of an investment in the ~~Shares~~Units, nor upon the accuracy or adequacy of the SPAC’s reports, schedules, forms, statements and other documents required to be filed by the SPAC under the Securities Act and the Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof. ~~2.1.13~~ (xiii) Subscriber represents and warrants that neither Subscriber nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List,~~ ”) or ~~the Sectoral Sanctions Identification List~~any other similar list of sanctioned persons, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aan

Appears in 2 contracts

Sources: Unit Subscription Agreement (Leibovitch Yoav), Unit Subscription Agreement (Endurance Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber is (i) an institutional account as defined in FINRA Rule 4512(c), (ii) a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understand that the Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A ~~promulgated~~ under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. For purposes of this Subscription Agreement, “Transfer” shall mean any direct or indirect transfer, redemption, disposition or monetization in any manner whatsoever, including, without limitation, through any derivative transactions. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the ~~Issuer, Pubco, the Company,~~ Issuer and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain and review such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, and Subscriber has made its own assessment and satisfied itself concerning the relevant tax and other economic considerations relevant to its Subscription. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its ~~representative~~representatives. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its ~~representative~~representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is, or is acting on behalf of, (i) an “employee benefit ~~plan~~ plan” within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”) that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Internal Revenue Code of 1985, as amended (the “Code”) that is subject to ~~Section~~ section 4975 of the ~~Code or~~ Code, (iii) an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA)) (collectively, “Non-ERISA Plans”) or other plan that is ~~not subject to the foregoing but may be~~ subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to ~~such~~ the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the ~~Code~~Code (collectively, “Similar Laws”), or (iv) an entity whose underlying assets are considered to include “plan assets” of any ~~such plan~~of the foregoing described in clauses (i), ~~account~~(ii) and (iii) (each of the foregoing described in clauses (i), ~~or arrangement~~ (~~each~~ii), (iii) and (iv) referred to as a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that (ix) ~~it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to the Subscriber’s decision to acquire or hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to ~~hold~~hold or transfer the Shares and (y) the acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code, or ~~transfer~~ a similar violation of any applicable Similar Law. Additionally, if the Subscriber is, or is acting on behalf of, Non-ERISA Plans, the Subscriber further represents and warrants that (a) the Subscriber’s decision to acquire or hold the Shares: (i) does not violate and is not otherwise inconsistent with the terms of any legal document constituting or governing the employee benefit plan; (ii) has been duly authorized and approved by all necessary parties; and (iii) is in compliance with all applicable laws, rules and regulations and (b) neither the Transaction Parties nor any person who manages the assets of the Transaction Parties will be subject to any laws, rules or regulations applicable to such Subscriber solely as a result of Subscriber’s decision to acquire or hold the Shares. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Issuer’s Class A Ordinary Shares prior to the date hereof, Subscriber is not currently (and at all times through the Subscription Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Subscription Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions

Appears in 2 contracts

Sources: Business Combination Agreement (Cartesian Growth Corp), Subscription Agreement (Cartesian Growth Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ PubCo to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to each of the ~~Issuer~~ SPAC, Company, and ~~Pubco~~ PubCo and acknowledges and ~~agrees with the Issuer and Pubco~~agrees, as of the date hereof and as of the Closing, as follows: 2.1.1 ~~If Subscriber is~~ The Subscriber, if not an individual, ~~Subscriber~~ has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by the Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ the Subscriber, enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by the Subscriber of this Subscription Agreement (including compliance by the Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of the Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which the Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which the Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of the Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if the Subscriber is not an individual, result in any violation of the provisions of the organizational documents of the Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an “accredited investor” and the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and ~~(iv) is~~ not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). The Subscriber is not an entity formed for the specific purpose of acquiring the Shares. The information provided by the Subscriber on Schedule I is true and correct in all respects. 2.1.5 The Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that the Shares have not been registered under the Securities Act. The Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by the Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the PubCo or ~~a subsidiary thereof~~any of its subsidiaries, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i), (ii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and ~~that~~ (B) any certificates or book entries representing the Shares shall contain a legend to such effect. The Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one year from the filing of “Form 10 information” with the Commission (as defined below) after the Closing Date. The Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of these restrictions, the ~~transfer restrictions described herein,~~ Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 The Subscriber understands and agrees that the Subscriber is purchasing the Shares directly from ~~Pubco~~PubCo. The Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to the Subscriber by the ~~Issuer, Pubco~~SPAC, the Company, ~~the Placement Agents (as defined below)~~ PubCo, or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, the Subscriber represents that it has relied solely upon independent investigation made by the Subscriber and ~~the Issuer’s~~ its own investment analysis and ~~Pubco’s representations, warranties and agreements in Section 2.2 hereof~~due diligence (including professional advice it deems appropriate). Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to ~~the Issuer, Pubco~~PubCo, the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. The Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by or on behalf of the SPAC, the Company and PubCo prior to the date of this Subscription Agreement. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and ~~such~~ the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber further acknowledges that the information provided to the Subscriber (other than the information expressly set forth in the representation and warranties made by the SPAC, the Company and PubCo herein) is preliminary and subject to change. ~~2.1.9~~ 2.1.8 The Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ SPAC, Company or ~~its representative. Subscriber has~~ PubCo as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ SPAC, Company, PubCo or ~~its representative~~their respective representatives, and the Shares were offered to the Subscriber solely by direct contact between the Subscriber and the ~~Issuer~~ SPAC, Company or ~~its representative~~PubCo. The Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to the Subscriber, by any other means. The Subscriber acknowledges that it did not become aware of this offering of the Shares (i) ~~were not offered to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, SPAC, the Company, the PubCo, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties expressly contained in this Subscription Agreement, in making its investment or decision to invest in the PubCo. ~~2.1.10~~ 2.1.9 The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. The Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as the Subscriber has considered necessary to make an informed investment ~~decision~~decision and the Subscriber has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares. The Subscriber ~~understands~~ is able to sustain a complete loss on its investment in the Shares, has no need for liquidity with respect to its investment in the Shares and ~~acknowledges that the purchase and~~ has no reason to anticipate any change in circumstances, financial or otherwise, which may cause or require any sale or distribution of all or any part of the ~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~Shares. ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.10 Alone, or together with any professional advisor(s), ~~if any,~~ the Subscriber represents and acknowledges that the Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~Pubco~~the Shares. The Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.11 The Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.12 The Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity otherwise blocked by any OFAC sanctions program or the U.S. Department of State; (ii) ~~owned~~ owned, directly or indirectly, or controlled by, or acting on behalf of, ~~a person,~~ one or more persons that is are named on an the OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of ~~Ukraine,~~ Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (each, a “Prohibited Investor”). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. The Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If the Subscriber is not an individual, the Subscriber also represents that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. The Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Shares were derived legally ~~derived~~and not obtained, directly or indirectly, from a Prohibited Investor, and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 2.1.13 The Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 2.1.14 No foreign person (as defined in ~~31 C.F.R. Part 800.224~~Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations issued and effective thereunder (together, the “DPA”)) in which the national or subnational governments of a single foreign state have a “substantial ~~interest~~ interest” (as defined in ~~31 C.F.R. Part 800.244~~the DPA) will acquire aa “substantial interest” (as defined in the DPA) in the PubCo as a result of the purchase of Shares by the Subscriber hereunder such that a filing before the Committee on Foreign Investment in the United States would be required under the DPA, and no such foreign person will have “control” (as defined in the DPA) over the PubCo from and after the Closing as a result of the purchase of Shares by the Subscriber hereunder. 2.1.15 On each date the Purchase Price would be required to be funded to PubCo pursuant to Section 3 the Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16 The Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation, warranty, covenant, or information provided by any person, firm or corporation (including the Company, any of its affiliates or any of its or their respective control persons, officers, directors or employees), other than the SEC Documents (as defined below) and the covenants, representations and warranties of the SPAC, Company or PubCo expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Shares. the Subscriber agrees that neither (i) any other subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital (including the controlling persons, officers, directors, partners, agents or employees of any such subscriber) nor (ii) the Company, its affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees, shall be liable to the Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s

Appears in 2 contracts

Sources: Subscription Agreement (DT Cloud Acquisition Corp), Subscription Agreement (DT Cloud Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ability of Subscriber to enter into and timely perform its obligations under or consummate the transactions contemplated by this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco, the Company, the Placement Agents (as defined below)~~ Study or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has ~~received access to and~~ received, has had an adequate opportunity to review and has reviewed such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco~~Study, ~~the Company,~~ Magnet and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is not an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement ~~(each, a “Plan”)~~ subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, . 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber ~~represents and warrants that (i) it has not relied on~~ with the ~~Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary~~ Commission with respect to ~~its decision to acquire and hold~~ the ~~Shares (and acknowledges that~~ beneficial ownership of the ~~Transaction Parties have not acted as the Plan~~Issuer’s ~~fiduciary with respect to such decision)~~common stock, ~~and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.18 None of the information provided or to be provided in writing by or on behalf of Subscriber for inclusion in the Joint Proxy Statement or Joint Proxy Statement/Prospectus (each, as defined in the Study Merger Agreement) will contain any untrue statement or a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 2.1.19 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 2 contracts

Sources: Subscription Agreement (Churchill Capital Corp II), Subscription Agreement (Churchill Capital Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ the Placement Agents (as defined below) and acknowledges and agrees with the Issuer and ~~Pubco, as of~~ the ~~date hereof and as of the Closing,~~ Placement Agents as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~. ~~2.1.5~~ 2.1.5. Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by Deutsche Bank Securities Inc. (“Deutsche Bank”) or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇” and together with Deutsche Bank, the “Placement Agents”), the Issuer, ~~Pubco~~Rigetti, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer expressly set forth in this Subscription Agreement. Subscriber understands and acknowledges that (i) Deutsche Bank or its affiliate is also acting as a financial advisor to Rigetti in relation to the Acquisition and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is also acting as capital markets advisor to the Issuer. Subscriber understands and acknowledges (i) that Deutsche Bank’s role as financial advisor to Rigetti and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ role as capital markets advisor to the Issuer, ~~and Subscriber is not relying on any representations~~in each case, ~~warranties~~ may give rise to potential conflicts of interest or ~~covenants other than those expressly set forth in this Subscription Agreement~~the appearance thereof. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ Rigetti and the ~~Company~~Acquisition, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that, as the Subscriber deems necessary, it has reviewed (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”), (ii) a presentation with respect to Rigetti provided to Subscriber by the Issuer, (iii) summary key risks related to the Issuer, Rigetti and the Acquisition provided to Subscriber by the Issuer and (iv) the financial statements of Rigetti as of January 31, 2020 and 2021 and the years then ended. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) neither of the Placement Agents nor any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation, express or implied, as to the Issuer, Rigetti, their credit quality, the quality or value of the Shares, the Acquisition or the other transactions contemplated hereby, or the Subscriber’s purchase of the Shares. In connection with the issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Issuer, Rigetti or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. ~~2.1.9~~ 2.1.9. The Subscriber acknowledges that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Subscriber has not relied on any investigation that the Placement Agents, any of their respective affiliates or any person acting on their behalf have conducted with respect to the Shares, Rigetti or the Issuer. The Subscriber further acknowledges that it has not relied on any information contained in any research reports prepared by the Placement Agents or any of their respective affiliates. 2.1.10. Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or ~~its representative~~Rigetti or a representative of the Issuer, including the Placement Agents. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~Rigetti or a representative of the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12. Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.14. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire adesi

Appears in 2 contracts

Sources: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.), Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares and the Warrants, if applicable, to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ability of Subscriber to enter ~~into and timely~~ into, perform its obligations under or consummate the transactions contemplated by this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) assuming each of the consents, authorizations and approvals referred to in Section 2.1.4 are obtained and each of the filings referred to in Section 2.1.4 are made and any applicable waiting periods referred to therein have expired, result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Except for (i) applicable filing, notification, waiting period or approval requirements under applicable Antitrust Laws (as defined below) (including the HSR Act (as defined below)), and (ii) solely to the extent Subscriber has elected to deliver the Second Step Investment Notice, the submission of a voluntary notice to CFIUS (as defined below) and receipt of CFIUS Approval (as defined below), no consents or approvals of, or notices to or filings, declarations or registrations with, any governmental authority of competent jurisdiction are necessary for the execution and delivery of this Subscription Agreement by Subscriber and the consummation by Subscriber of the Subscription, other than as would not reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.5 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Shares and the Warrants, if applicable, only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares and the Warrants, as applicable, as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares and the Warrants, if applicable, with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Shares or the Warrants. ~~2.1.5~~ 2.1.6 Subscriber understands that the Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares and the Warrants have not been registered under the Securities Act. Subscriber understands that the Shares and the Warrants may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares or the Warrants shall contain a legend to such effect. Subscriber acknowledges that the Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares or the Warrants will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares or the Warrants and may be required to bear the financial risk of an investment in the Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Shares or the Warrants. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares and the Warrants, if applicable, directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ 2.1.8 Subscriber represents and warrants that its acquisition and holding of the Shares and the Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Shares~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Shares and the Warrants or the offer and sale of the ~~Shares~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has ~~received access to and~~ received, has had an adequate opportunity to review and has reviewed such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Shares and the Warrants, including with respect to the Issuer, ~~Pubco~~Study, ~~the Company,~~ Magnet and the ~~Transactions~~ Transactions, and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Shares and the Warrants. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Shares and the Warrants. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the Shares and the Warrants solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its representative, and the Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the ~~Shares~~Shares and the Warrants, nor were the Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Shares and the Warrants. Subscriber 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~~Shares and the Warrants, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and the Warrants and determined that the Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or the Warrants or made any findings or determination as to the fairness of an investment in the ~~Shares~~Shares or the Warrants. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14 If~~ 2.1.15 Subscriber is not an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement ~~(each, a “Plan”)~~ subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, . 2.1.16 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber ~~represents and warrants that (i) it has not relied on~~ with the ~~Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary~~ Commission with respect to ~~its decision to acquire and hold~~ the ~~Shares (and acknowledges that~~ beneficial ownership of the ~~Transaction Parties have not acted as the Plan~~Issuer’s ~~fiduciary with respect to such decision)~~common stock, ~~and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ Subscriber is not currently (and at all times through ~~Closing~~ the First Step Investment Closing, if Subscriber has not made the Second Step Investment, and through the Second Step Investment Closing, if Subscriber has made the Second Step Investment, will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.17 Subscriber ~~hereby acknowledges~~ has, and ~~agrees that it will not, nor will any person acting at~~ on each date the ~~Subscriber’s direction or~~ Purchase Price would be required to be funded to the Issuer pursuant to ~~any understanding with~~ Section 3.1 will have, or will have access to, sufficient immediately available funds to pay the ~~Subscriber~~Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares and the Warrants. 2.1.18 None of the information provided or to be provided in writing by or on behalf of Subscriber for inclusion in the Joint Proxy Statement or Joint Proxy Statement/Prospectus (each, ~~directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales”~~ as defined in ~~Rule 200~~ the Study Merger Agreement) will contain any untrue statement of ~~Regulation SHO under~~ a material fact or omit to state any material fact necessary in order to make the ~~Exchange Act~~ statements therein, in the light of the ~~Shares until the consummation~~ circumstances under which they were made, not misleading. 2.1.19 No broker, finder or other financial consultant has acted on behalf of ~~the Transactions (or such earlier termination of this Subscription Agreement~~ Subscriber in ~~accordance~~ connection with ~~its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of~~ this Subscription Agreement or of the ~~Subscriber’s participation~~ transactions contemplated hereby in such a way as to create any liability on the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementIssuer. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 2 contracts

Sources: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~ii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). 2.1.4 Subscriber (i) is (a) either (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities ~~Act~~Act or (y) an Institutional Account as defined in FINRA Rule 4512(c) and (b) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Nothing contained herein shall be deemed a representation or warranty by Subscriber to hold the Subscribed Shares for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5 Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one (1) year from the Closing Date. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by or on behalf of the Issuer, ~~Pubco~~Jasper, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, employees, partners, agents or ~~directors~~representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied ~~solely~~ upon (i) independent investigation made by ~~Subscriber~~ Subscriber, (ii) the SEC Documents (as defined below) and (iii) the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by or on behalf of anyone (including Credit Suisse Securities (USA) LLC, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco,~~ Jasper and the ~~Company~~Transactions, and Subscriber further acknowledges that such information is subject to change, and that any changes to such information, including any changes based on updated information or changes in the ~~Transactions and has made its own assessment and is satisfied concerning~~ terms of the ~~relevant tax and other economic considerations relevant to~~ Transactions, shall in no way affect the Subscriber’s ~~investment in~~ obligation to purchase the ~~Shares~~Subscribed Shares hereunder, except as otherwise provided herein. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Except as expressly set forth herein, Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and Jasper including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer. 2.1.9 Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber, (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, Jasper or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. Subscriber further acknowledges that Credit Suisse Securities (USA) LLC is acting as capital markets advisor to Jasper in connection with the Transactions. Issuer and Jasper are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. 2.1.10 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or ~~its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer~~ Jasper or ~~its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative~~one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)Act. 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) ~~owned~~ owned, directly or indirectly, or controlled by, or acting on behalf of, ~~a person,~~ one or more persons that is are named on an the OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, ~~of,~~ of Cuba, Iran, North Korea, Syria, the Crimea region of ~~Ukraine,~~ Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by in the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently ~~(and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aof

Appears in 2 contracts

Sources: Business Combination Agreement (Amplitude Healthcare Acquisition Corp), Subscription Agreement (Amplitude Healthcare Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing, as follows~~Issuer: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or~~ ), an institutional “accredited investor” (within the meaning of ~~Rule 501(a)~~ subparagraphs (1a)(1), (2a)(2), (3a)(3) or (7a)(7) of Rule 501 under the Securities Act) or a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act of 1940, as amended, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a nominee, fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ,” an institutional “accredited investor” or a “qualified purchaser” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(B), (C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) ~~to non-U.S. persons~~ pursuant to offers and sales that occur solely outside the United States within the meaning of and in compliance with Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (iii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such ~~effect~~effect (a “Restricted Legend”). Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon an independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has had an adequate opportunity to review the documents made available to the Subscriber by or on behalf of the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that Barclays Capital Inc., ▇▇▇▇▇▇▇▇▇ LLC, BTIG, LLC and ▇▇▇▇▇▇▇ & Company, LLC (the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise set forth in this Subscription Agreement. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agents or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of advertising or, to ~~its~~ such Subscriber's knowledge, general ~~solicitation, including methods described in Section 502(c)~~ solicitation (within the meaning of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act). 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the forms, reports, registration statements and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets ~~(i)~~ the exemptions from filing under FINRA Rule ~~5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b~~5123(b)(1). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any~~Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) ), or in any other ~~Executive Order issued~~ sanctions-related list maintained and enforced by the ~~President~~ U.S. government, including but not limited to the U.S. Department of ~~the United States and administered by OFAC~~ State, U.S. Department of Commerce, or U.S. Department of Treasury (collectively, “~~OFAC~~ Sanctions Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on ~~an OFAC~~ a Sanctions List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or entity providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with ~~OFAC-administered~~ U.S. sanctions programs, including for the screening of its investors against the ~~OFAC sanctions programs, including the OFAC~~ Sanctions Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) ~~as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not~~ has acted as the Plan’s ~~fiduciary with respect to such decision)~~fiduciary, and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aor

Appears in 2 contracts

Sources: Subscription Agreement (LGL Systems Acquisition Corp.), Merger Agreement (LGL Systems Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to ~~Subscriber~~Subscriber at the Closing, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ GOGN and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ ▇▇▇▇ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by~~ The Subscriber~~. If Subscriber is an individual, the~~ ’s signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~GOGN, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other laws relating to or affecting the rights of creditors generally and (ii) general principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 The ~~execution,~~ execution and delivery ~~and performance by Subscriber~~ of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber and (iii) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Shares. 2.1.4 The execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of ~~Subscriber~~ Subscriber, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have~~ have, individually or in the aggregate, a ~~materially~~ material adverse effect on the ability of of, or prevents, impairs, delays or impedes the legal authority of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”) or (ii~~) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii~~) result in any violation of any law, statute or any judgment, order, rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ properties that would reasonably be expected to have a ~~materially adverse effect on~~ Subscriber Material Adverse Effect. 2.1.5 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the ~~ability~~ execution, delivery and performance of ~~Subscriber to enter into and timely perform its obligations under~~ this Subscription Agreement. ~~2.1.4~~ 2.1.6 Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) if resident in a member state of the European Economic Area, is ~~an institutional account as defined in FINRA Rule 4512(c~~a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (ivv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I attached hereto, where such information provided shall be accurate and complete in all material respects). . 2.1.7 Subscriber is ~~not an entity formed for~~ a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the ~~specific purpose~~ purchase of ~~acquiring~~ the Shares. ~~2.1.5~~ 2.1.8 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares (if any) shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. By making the representations herein, Subscriber does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, ~~Pubco~~GOGN, the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective ~~affiliates~~affiliates or control persons, ~~officers~~ officers, directors, employees, agents, partners or ~~directors~~representatives of any of the foregoing or any other person or entity (such persons, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, covenants, and agreements of GOGN and the Issuer expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by GOGN and the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ 2.1.10 Subscriber represents and warrants that it (i) is ~~an employee benefit~~ purchasing the Shares for investment, (ii) has no current plan ~~that~~ or intention to dispose of or otherwise transfer the Shares and (iii) is ~~subject~~ under no binding agreement to ~~Title I~~ dispose of or otherwise transfer the ~~Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Shares. 2.1.11 Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable ~~similar law~~Similar Law (as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and ~~Pubco~~GOGN’s representations, warranties and agreements in Section 2.2 and Section 2.3 hereof, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by ~~anyone other than the Issuer or Pubco~~ any Non-Party Affiliate concerning the ~~Issuer or Pubco~~ Issuer, GOGN, the Company or the ~~Shares or~~ Shares, the offer and sale of the Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco~~GOGN, the Company, the offer and sale of the Shares, the Transactions or the other transactions contemplated by the Subscription Agreement and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had an opportunity to review the documents made available to Subscriber by GOGN and the Company, including the Investor Presentation dated December 2022 (the “Disclosure Package”), provided by GOGN and the Company and any such documents available on the Securities and Exchange Commission’s (the “Commission”) ▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and conducted and completed their own independent diligence concerning the Issuer, GOGN, the Company, the Shares, the offer and sale of the Shares, the Transactions and the other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Issuer and GOGN expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Issuer, GOGN, the Company or the Shares, the offer and sale of the Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. ~~2.1.9~~ 2.1.13 Subscriber became aware of this offering of the Shares solely by means of direct contact between ~~Subscriber and~~ Subscriber, on the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representativeone hand, and the Issuer, GOGN or their respective representatives, on the other hand. The Shares were offered to Subscriber solely by such direct ~~contact between Subscriber and the Issuer or its representative~~contact. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to ~~Subscriber~~ it by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) are not being offered to it in a manner involving a public offering under, or or, to its knowledge, in a distribution in violation of, the Securities Act or any ~~state~~ other applicable securities laws. ~~2.1.10~~ 2.1.14 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the GOGN SEC Documents (as defined below). Subscriber is a sophisticated investor, is able to fend for itself in the transactions contemplated herein, 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. Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and ~~Subscriber has sought such accounting~~that none of the Company, ~~legal~~the Issuer, ~~and~~ GOGN or any of their respective agents or affiliates, have provided any tax advice ~~as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that~~ or any other representation or guarantee, whether written or oral, regarding the ~~purchase and sale~~ tax consequences of the ~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~transactions contemplated by this Subscription Agreement. ~~2.1.11~~ 2.1.15 Subscriber represents and acknowledges that Subscriber, alone, or together with ~~any~~ its professional advisor(s), if any, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.16 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.17 The Subscriber is not (i) a person or entity named on any sanctions list maintained by (A) the U.S. Department of the Treasury’s Office of Foreign Assets Control, including, but not limited to, the List of Specially Designated Nationals and Blocked Persons~~, the Executive Order 13599 List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, ~~each of which is administered by~~ (B) the ~~U.S. Treasury Department’s Office of Foreign Assets Control~~ European Union, (~~“OFAC”~~C) ~~or in any other Executive Order issued by~~ the ~~President~~ United Nations Security Council, (D) the government of the United ~~States and administered by OFAC~~ Kingdom, including HM Treasury, or (E) any individual European Union member state (clauses (A)-(E), collectively, “~~OFAC~~ Sanctions Bodies” and the sanctions lists maintained by the Sanctions Bodies, the “Sanctions Lists”), (ii) 50% or more owned or controlled by, or acting on behalf of, a person, that is named on ~~an OFAC List~~a list maintained by any Sanctions Body, (iii) organized, incorporated, established, located, resident ~~or born~~ in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of,~~ of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other country or territory embargoed or subject to substantial trade restrictions by ~~the United States~~any Sanctions Body, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.18 If Subscriber is acting on behalf of (i) an employee benefit plan that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement ~~(each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that~~ described in clauses (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) ~~it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire~~(each, ~~continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a~~ an “~~group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act~~ERISA Plan”), or ~~any successor provision~~(iv) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber an employee benefit plan that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ~~a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~ERISA),

Appears in 1 contract

Sources: Subscription Agreement (GoGreen Investments Corp)

Appears in 1 contract

Sources: Sponsor Subscription Agreement

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (iic) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~d) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber (ie) is (1) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (2) an Institutional Account as defined in FINRA Rule 4512(c) and (3) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (ivc) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (id) to ~~Pubco~~ the Issuer or a subsidiary thereof, (iie) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (~~iii~~f) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Springbig, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by ~~anyone~~ anyone, other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco, the Company,~~ Springbig and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and Springbig including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (ig) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned~~ or ~~controlled by,~~ a person or ~~acting on behalf of, a person, that is named on an~~ entity prohibited by any OFAC ~~List~~sanctions program, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (ivh) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (vi) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.14. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby ~~acknowledges and~~ in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees ~~that it will not~~that, ~~nor will~~ from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting ~~at the Subscriber’s direction~~ on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with ~~the Subscriber, directly~~ Subscriber or ~~indirectly offer, sell, pledge, contract to sell, sell~~ any ~~option,~~ of its controlled affiliates will engage in ~~hedging activities or execute~~ any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of promulgated under Regulation SHO under the Exchange ~~Act~~ Act, and all types of direct and indirect stock pledges (other than pledges in the ~~Shares until the consummation~~ ordinary course of ~~the Transactions~~ business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or ~~such earlier termination of this Subscription Agreement in accordance with its terms)~~foreign regulated brokers. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the ~~subscription~~ Subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any “short sales, ” and (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscribed Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Tuatara Capital Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber and to induce the Sponsor to transfer the Transferring Warrants to the Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Issuer, Kismet and ~~Pubco~~ Sponsor and acknowledges and agrees with the ~~Issuer~~ Issuer, Kismet and ~~Pubco, as of the date hereof and as of the Closing,~~ Sponsor as follows: ~~2.1.1 If Subscriber is not an individual,~~ a) Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer~~ Issuer, Kismet and ~~Pubco~~Sponsor, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ d) Subscriber is either a U.S. investor or non-U.S. investor and: i) If a U.S. investor, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act~~Act (“Rule 144A”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an “accredited investor” (each as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and ~~shall provide~~ Subscriber further represents that Subscriber does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations in the Shares to such person or to any third person, with respect to any of the Shares. Subscriber has provided the Company with the requested information on Schedule I ~~attached hereto)~~following the signature page hereto and the information contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c). Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). ~~2.1.5~~ ii) If a non-U.S. investor, understands that the sale of the Shares is made pursuant to and in reliance upon Regulation S promulgated under the Securities Act (“Regulation S”). The Subscriber is not a U.S. Person (as defined in Regulation S), and it is acquiring the Shares in an offshore transaction in reliance on Regulation S. The Subscriber understands and agrees that Shares sold pursuant to Regulation S may be subject to restrictions thereunder, including compliance with the distribution compliance period provisions therein. Subscriber is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c). Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). e) Subscriber (i) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), and (ii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”). f) Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ g) Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Kismet, Sponsor, the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. The Subscriber acknowledges that certain information provided to the Subscriber was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ h) Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ i) In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s, Kismet’s and ~~Pubco~~Sponsor’s representations, warranties and agreements in ~~Section 2.2~~ Sections 3.2, 3.3 and 3.4 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the ~~Issuer or Pubco~~ Issuer, Kismet and Sponsor concerning the ~~Issuer~~ Issuer, Kismet or ~~Pubco~~ Sponsor or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco~~Kismet, Sponsor, the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by Kismet, Sponsor and the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that the information provided to Subscriber is preliminary and subject to change. ~~2.1.9~~ j) Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Sponsor, Issuer or ~~its representative. Subscriber has~~ Kismet as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) preceding the filing of the Registration Statement by the Issuer, with the ~~Issuer~~ Issuer, Sponsor, Kismet or ~~its representative~~their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Sponsor, Issuer or ~~its representative~~Kismet. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to ~~Subscriber~~ it by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, or directed selling efforts (within the meaning of Regulation S under the Securities Act) and (ii) are not being offered to it in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ k) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets ~~(i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii)~~ the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ l) Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), ~~if any,~~ has ~~adequately~~ analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ m) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ n) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, ~~the Crimea region of Ukraine~~Crimea, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors (if it has investors) against ~~the OFAC sanctions programs, including~~ the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ o) If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ao

Appears in 1 contract

Sources: Subscription Agreement (Kismet Acquisition One Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Warrants to each Subscriber, ~~Subscriber~~ each Subscriber, severally (and not jointly), hereby represents and warrants (as to itself only) to the ~~Issuer and Pubco~~ Company and acknowledges and agrees with the ~~Issuer~~ Company, severally (and ~~Pubco, as of the date hereof and as of the Closing~~not jointly), as follows: 2.1.1 If the Subscriber is not an individual, the Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its several (and not joint) obligations under this Subscription Agreement. If such Subscriber is an individual, the Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If the Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by the Subscriber. If the Subscriber is an individual, the signature on this Subscription Agreement is genuine, and the Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Company, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against such Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~II, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Warrants only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Warrants as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the ~~Shares~~ Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall ~~provide~~ provide, at the ~~requested~~ Company's request, the information on Schedule ~~I attached~~ II following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Warrants. 2.1.5 Subscriber understands that the ~~Shares~~ Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Warrants have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Warrants may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the ~~Shares~~ Warrants shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Warrants will not be eligible for resale pursuant to Rule ~~144A promulgated under the Securities Act.~~ 144A. Subscriber understands and agrees that the Warrants will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Warrants and may be required to bear the financial risk of an investment in the ~~Shares~~ Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is ~~purchasing~~ subscribing for the ~~Shares~~ Warrants directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber with respect to the Warrants by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Each Subscriber ~~is an employee benefit plan~~ represents and warrants (as to itself only) that ~~is subject to Title I~~ its acquisition and holding of the Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to ~~purchase~~ subscribe for the ~~Shares~~Warrants, each Subscriber represents (as to itself only) that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the ~~Issuer or Pubco~~ Company and its representatives concerning the ~~Issuer or Pubco~~ Company or the ~~Shares~~ Warrants or the offer and sale of the ~~Shares~~Warrants. Subscriber acknowledges and agrees (as to itself only) that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Warrants, including with respect to the ~~Issuer, Pubco, the~~ Company~~, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~. Subscriber represents and agrees (as to itself only) that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Warrants. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Warrants solely by means of direct contact between Subscriber and the ~~Issuer~~ Company or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ Company or its representative, and the ~~Shares~~ Warrants were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Company or its representative. Subscriber did not become aware of this offering of the ~~Shares~~Warrants, nor were the ~~Shares~~ Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Company represents and warrants that the Warrants (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription for and ownership of the ~~Shares~~Warrants. Subscriber 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~~Warrants, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges (as to itself only) that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Warrants and determined that the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Warrants or made any findings or determination as to the fairness of an investment in the ~~Shares~~Warrants. 2.1.13 Subscriber represents and warrants (as to itself only) that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents (as to itself only) that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents (as to itself only) that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derivedList. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants (as to itself only) that ~~(i) it has not relied on~~ neither the ~~Issuer or Pubco or~~ Company, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Warrants, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Warrants. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Company’s Common Stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Company as a result of the issuance of the Warrants hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the issuance of the Warrants hereunder. 2.1.17 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement in such a way as to create any liability on the Company.

Appears in 1 contract

Sources: Subscription Agreement (Green Plains Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce Pubco to issue the Pubco Shares to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer and Pubco and acknowledges~~ Pubco, and agrees with ~~the Issuer and~~ Pubco~~, as of the date hereof and as of the Closing~~, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with the power and authority to enter into, ~~deliver,~~ deliver and perform all of its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and~~ Pubco, this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Pubco Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Pubco Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Pubco Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act (~~Act. Subscriber has completed Schedule A following the signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~on Schedule I attached hereto)~~contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Pubco Shares. Subscriber understands and acknowledges that the purchase of the Pubco Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Pubco Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Pubco Shares have not ~~been~~ been, and will not be registered under the Securities ~~Act~~Act prior to Closing. Subscriber understands that the Pubco Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber, any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each “Subscriber Affiliate”) absent an effective registration statement under the Securities ~~Act,~~ Act except (i) to the Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur ~~solely~~ outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and ~~in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and~~ that any certificates or book entries representing the Pubco Shares shall contain a legend to such effect. Subscriber acknowledges that the Pubco Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Pubco Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Pubco Shares and may be required to bear the financial risk of an investment in the Pubco Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Pubco Shares. 2.1.6 Subscriber ~~understands~~ acknowledges and agrees that the Subscriber is purchasing the Pubco Shares directly from the Pubco. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by ~~the Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Pubco or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Pubco Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Pubco Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the ~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or~~ Pubco ~~concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares~~contained in this Subscription Agreement. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions and receive answers with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Pubco Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the Pubco Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has had an adequate opportunity to review the documents Subscriber deems necessary that have been provided to the Subscriber by Pubco and the Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information regarding the Company, Pubco and the Transaction, as the Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the Pubco Shares. The Subscriber acknowledges that, aside from certain disclosures pertaining to valuation, transaction structure, and comparable companies and transactions, no disclosure or any information received by the Subscriber has been prepared by O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (the “Placement Agent”) and that the Placement Agent and its directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to Pubco or the Pubco Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or Pubco. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Pubco Shares, including information related to the Company, Pubco, the Pubco Shares and the offer and sale of the Pubco Shares. The information provided to the Subscriber is preliminary and subject to change. 2.1.9 Subscriber became aware of this offering of the Pubco Shares solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent, Pubco, the Company or ~~its representative. Subscriber has~~ a representative of Pubco or the Company or (b) directly from Pubco or the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Pubco Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agent, Pubco, the Company or ~~its representative~~a representative of Pubco or the Company. Subscriber did not become aware of this offering of the Pubco Shares, nor were the Pubco Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that Pubco represents and warrants that the Pubco Shares (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Pubco Shares. Subscriber 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 Pubco Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber ~~understands and~~ acknowledges that the purchase and sale of the Pubco Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Pubco Shares, has adequately analyzed and fully considered the risks of an investment in the Pubco Shares and determined that the Pubco Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the Pubco Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Pubco Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing, will have, sufficient available funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section ~~4975~~ 3.1. 2.1.15 As of the ~~Code~~ date hereof and as of the date of Closing, Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or ~~an employee benefit plan~~ any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. At any time prior to the Closing, Subscriber hereby agrees that it shall notify Pubco promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, at or prior to Closing, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~governmental plan (as defined in Section 3(32)~~ direct beneficial owner of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the PlanSubscriber’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting securities for ~~the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning~~ purposes of Rule ~~13d-5(b)(1~~506(d) under the ~~Exchange~~ Securities Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Rodgers Silicon Valley Acquisition Corp)

Appears in 1 contract

Sources: Business Combination Agreement (Broadstone Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii) result in any violation of any statute or any judgment, order, rule, or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription AgreementMaterial Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) ), or (7) under the Securities Act), (b) is an Institutional Account as defined in FINRA Rule 4512(c) and (c) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined~~ has exercised independent judgment in ~~FINRA Rule 4512(c)~~evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares and participation in the Subscription (i) are fully consistent with its financial needs, objectives and condition, and (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to it (if any). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares~~. 2.1.5~~ . Subscriber understands that the offering of the Subscribed Shares meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or the securities laws of any other jurisdiction. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses (i~~cases ‎(i) and ~~(iii~~‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one year from the filing by the Issuer of the “Form 10 information” after the closing of the Business Combination and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. Subscriber will not look to the Placement Agent for all or part of any such loss or losses Subscriber may suffer. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco, the Company~~Oculis, the Placement ~~Agents~~ Agent (as defined below) or any of ~~their respective affiliates~~its affiliate or any control persons, ~~officers~~ officers, directors, employees, partners, agents or ~~directors~~representatives, expressly or by implication, other ~~than~~ than, in the case of the Issuer only, those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement. Subscriber understands that certain financial information (whether historical or in the form of financial forecasts or projections) of the Issuer and Oculis have been prepared and reviewed solely by the Issuer, Oculis and their respective officers, directors and employees, as applicable, and ~~Subscriber is~~ have not ~~relying on~~ been reviewed by any ~~representations~~outside party or, ~~warranties or covenants other than those~~ except for the financial statements as expressly set forth in ~~this Subscription Agreement~~the Registration Statement (as defined below), certified or audited by an independent third-party auditor or audit firm. ~~2.1.7~~ 2.1.7. Subscriber does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the date hereof until and including the date that is two trading days following the Closing such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or short sale positions with respect to the securities of the Issuer. 2.1.8. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.9. To the Subscriber’s knowledge, no disclosure or offering document has been prepared in connection with the offer and sale of the Subscribed Shares by Arctica Finance hf. (the “Placement Agent”). In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including the Placement Agent), other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco, the Company~~Oculis, and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription and the Transactions, have had the full opportunity to ask such questions, including on the financial information, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and Oculis including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agent in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer. ~~2.1.9~~ 2.1.10. Subscriber acknowledges and agrees that (a) it has been informed that the Placement Agent is acting solely as placement agent in connection with the Subscription and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a fiduciary for Subscriber, the Issuer, Oculis or any other person or entity in connection with the Transactions, (b) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription and the Transactions, in each case, to Subscriber and such advice or recommendation is not necessary or desired, (c) the Placement Agent will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription and the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning, the Issuer, Oculis, the Subscription or the Transactions, (d) the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agent or its affiliates, shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, Oculis or any other person or entity) to the maximum extent permitted by applicable law, whether in contract, tort or otherwise, to Subscriber, the Issuer, Oculis or any other person or entity or to any person claiming through each of them, in respect of the Subscription and the Transactions and (e) the Placement Agent and its affiliates and any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agent and its affiliates have made no independent investigation with respect to the Issuer, Oculis, the Subscribed Shares, the Subscription or the Transactions or the accuracy, completeness or adequacy of any information supplied to the Placement Agent by the Issuer or Oculis. Subscriber further acknowledges that BofA Securities, Inc. is acting as financial advisor to Oculis in connection with the Transactions and that SVB Securities LLC is acting as Oculis’ capital markets advisor in connection with the Transactions. Subscriber waives and releases any claim that it or its affiliates may have against any Placement Agent and its affiliates and any control persons, officers, directors, employees, partners, agents or representatives of that Placement Agent and its affiliates with respect to any actual or perceived conflict of interest that may arise from such Placement Agent’s engagements as indicated in the immediately preceding sentence, in the context of such Placement Agent’s engagement by the Issuer as the Issuer’s placement agent in connection with the Subscription. The Issuer and Oculis are solely responsible for paying any fees or other commission owed to the Placement Agent in connection with the Subscription or the Transactions. 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation or general advertising. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber Issuer represents and warrants that ~~Subscriber is not (i) a person or entity named on~~ the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aSubscribed Sh

Appears in 1 contract

Sources: Subscription Agreement (European Biotech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Subscriber hereby represents and warrants ~~to the Issuer and Pubco and acknowledges and agrees with the Issuer and Pubco, as of the date hereof and as of the Closing, as follows~~that: ~~2.1.1 If Subscriber is not an individual,~~ (1) Subscriber has been duly organized, formed or ~~incorporated~~ incorporated, as the case may be, and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of ~~incorporation~~ organization, formation or ~~formation~~incorporation, as the case may be, with all requisite power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver~~, and ~~perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual,~~ this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ . (2) Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (3) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not ~~(i)~~ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the ~~property~~ properties or assets of Subscriber or any of its subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, if applicable, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, if applicable, any of its subsidiaries is bound or to which any of the ~~property~~ properties or assets of Subscriber or, if applicable, any of its subsidiaries is ~~subject~~subject or bound, which ~~would~~would be reasonably likely to have, individually or in ~~each case~~the aggregate, ~~reasonably be expected to have~~ a ~~materially~~ material adverse effect on the ~~ability~~ business, properties or financial condition of Subscriber, or, if applicable, the stockholders’ equity or results of operations of Subscriber or, if applicable, any of its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement, (ii) ~~if Subscriber is not an individual, result in any violation of the provisions of~~ the organizational documents of ~~Subscriber~~ Subscriber, or (iii) ~~result in any violation of~~ any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties~~their respective properties that would be reasonably likely to have, ~~which would~~individually or in the aggregate, ~~in each case, reasonably be expected to have~~ a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4 Subscriber~~ (i4) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring the Shares only for its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if Subscriber is ~~subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner~~ experienced in investing in equity securities and capable of ~~such account is a qualified institutional buyer, and Subscriber has full~~ evaluating investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Shares with a view to, or for offer or sale risks independently in connection ~~with, any distribution thereof~~ with its participation in ~~violation of~~ the ~~Securities Act (and shall provide the requested information on Schedule I attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~Subscription. ~~2.1.5 Subscriber understands that the~~ (5) The purchase of Acquired Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that as a result of the transfer restrictions described herein, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, Pubco, the Company, the Placement Agents (as defined below) or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not ~~relied on any statements~~ been solicited by or ~~other information provided by~~ through anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (~~as interpreted in guidance from the Commission (as defined below~~6) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (~~as defined in Section 3(32~~7) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to In making its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the ~~Shares covered~~ Acquired Shares, Subscriber has relied solely on the information contained or incorporated by ~~this Subscription Agreement~~ reference in the Registration Statement, Prospectus and Prospectus Supplement and the representations, warranties, covenants and agreements of the Issuer contained herein. (~~c) nothing herein shall independently apply~~ 8) Subscriber acknowledges that it is aware that there are substantial risks incident to ~~any Class A Ordinary Shares~~ the purchase and ownership of the Acquired Shares, including those set forth in the SEC Documents. Subscriber is able to fend for itself in the transactions contemplated herein, 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 Acquired Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that the Issuer has not (i) ~~acquired by Subscriber prior~~ given to ~~the date hereof~~ Subscriber, or authorized anyone to give to Subscriber, any information, or (ii) ~~acquired by~~ made to Subscriber, or authorized anyone to make to Subscriber, any representations about the ~~Subscriber after~~ Subscription, the ~~date hereof other than pursuant to~~ Issuer, the Subsidiaries or its or their respective businesses, in each case, that is different from, or in addition to, that which is contained in the SEC Documents or in this Subscription Agreement~~; provided that~~ . (9) No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the ~~foregoing is not intended to~~transactions contemplated hereby in such a way as to create any liability on the Issuer. (10) At the Closing, ~~and shall not, modify any restrictions or obligations relating~~ Subscriber will have sufficient immediately available funds to ~~such shares which exist independently~~ pay the aggregate Purchase Price for the Acquired Shares pursuant to Section 2 of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Mirion Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Subscriber hereby represents and warrants ~~to the Issuer and Pubco and acknowledges and agrees with the Issuer and Pubco, as of the date hereof and as of the Closing, as follows~~that: ~~2.1.1~~ (a) If Subscriber is not ~~an individual~~a natural person, (i) Subscriber has been duly organized, formed or ~~incorporated~~ incorporated, as the case may be, and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of ~~incorporation~~ organization, formation or ~~formation~~incorporation, as the case may be, with all requisite power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver~~, and ~~perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual,~~ (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. . (b) If Subscriber is ~~an individual~~a natural person, ~~the~~ (i) Subscriber has all requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement, (ii) Subscriber’s signature on this Subscription Agreement is ~~genuine,~~ genuine and Subscriber has duly executed and delivered this Subscription Agreement, and (iii) Subscriber has all requisite legal competence and capacity to ~~execute~~ acquire and hold the ~~same.~~ Acquired Shares and to execute, deliver and comply with the terms of this Subscription Agreement. (c) Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (d) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not ~~(i)~~ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, if applicable, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if applicable, any of its subsidiaries is subject, which ~~would~~would be reasonably likely to have, individually or in ~~each case~~the aggregate, ~~reasonably be expected to have~~ a ~~materially~~ material adverse effect on the ~~ability~~ business, properties or financial condition of Subscriber, or, if applicable, the stockholders’ equity or results of operations of Subscriber or, if applicable, any of its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement, (ii) ~~if Subscriber is not an individual, result in any violation of the provisions of~~ the organizational documents of Subscriber if Subscriber is not a natural person, or (iii) ~~result in any violation of~~ any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties~~their respective properties that would be reasonably likely to have, ~~which would~~individually or in the aggregate, ~~in each case, reasonably be expected to have~~ a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4~~ (e) Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional “~~accredited investor~~” (within the meaning of Rule 501(a) (1)~~, ~~(2), (3) or (7) under the Securities Act)~~ satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is an ~~institutional account~~ “Institutional Account” as defined in FINRA Rule 4512(c), ) and (iii) experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and in connection with its participation in the Offering. Subscriber represents that it is ~~acquiring~~ purchasing its entire beneficial ownership interest in the Acquired Shares ~~only~~ for its own account ~~or for beneficiaries’ portfolio under its management~~ (and not for the account of others~~, or if Subscriber is subscribing~~ ) for ~~the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer,~~ investment purposes and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with, any~~ to the distribution thereof in violation of the ~~Securities Act~~ securities laws of the United States or any other jurisdiction, provided, that (~~and~~ subject to the securities laws of the United States or any other jurisdiction) disposition of Subscriber’s property shall ~~provide the requested information on Schedule I attached hereto)~~at all times be within Subscriber’s control. ~~Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5~~ Subscriber understands that (1) the Acquired Shares ~~are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares~~ (A) have not been registered under the ~~Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed~~ securities laws of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States ~~within~~ or any other jurisdiction and may be resold or transferred in the ~~meaning~~ United States or otherwise only if registered pursuant to the provisions of ~~Regulation S under~~ the Securities ~~Act,~~ Act or ~~(iii) pursuant to another applicable~~ if an exemption from registration is available, and (B) may only be resold or transferred in compliance with applicable law and the restrictions on transfer set forth in this Subscription Agreement, and that (2) the Issuer is not required to register the Acquired Shares other than as provided in Section 5 of this Agreement. Subscriber further represents and warrants that it will not sell, transfer or otherwise dispose of the Acquired Shares or any interest therein except in a registered transaction or in a transaction exempt from or not subject to the registration requirements of the Securities ~~Act,~~ Act and ~~in each of clauses (i) and (iii),~~ except in accordance with ~~any applicable securities laws~~ the terms and conditions of ~~the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect~~this Subscription Agreement. Subscriber acknowledges that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement. (f) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived. (g) The purchase of Acquired Shares by Subscriber has not been solicited by or through anyone other than the Issuer or the Agent. (h) Subscriber acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement, unless and until such transfer restrictions have been removed in accordance with Section 9(d) of this Subscription Agreement and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. Subscriber also acknowledges that the Acquired Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”), and that the provisions of Rule 144(i) will apply to the Acquired Shares. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Acquired Shares. ~~2.1.6~~ (i) Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that (i) there have been no no, and will be no, representations, warranties, ~~covenants,~~ covenants or agreements (express or implied, of any kind or character) made to Subscriber in connection with Subscriber’s purchase of the Acquired Shares by the Issuer, ~~Pubco~~the Agent, the Company, the ~~Placement Agents (as defined below)~~ Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective ~~affiliates, officers or directors~~Representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer expressly set forth in this Subscription Agreement, (ii) the Agent has not provided any advice or recommendation to Subscriber in connection with Subscriber’s purchase of the Acquired Shares, and (iii) the Agent will not have any responsibility to Subscriber ~~is not relying on~~ with respect to (x) any representations, warranties or ~~covenants other than those expressly set forth~~ agreements made by any person or entity under or in ~~this~~ connection with the Subscription ~~Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I~~ or any of the ~~Employee Retirement Income Security Act of 1974~~documents furnished pursuant thereto or in connection therewith, ~~as amended~~ or the execution, legality, validity or enforceability (~~“ERISA”)~~with respect to any person) thereof, ~~Subscriber represents and warrants that its acquisition and holding of~~ or (y) the ~~Shares will not constitute~~ business, affairs, financial condition, operations, properties or ~~result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)~~prospects of, or any ~~applicable similar law~~other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. ~~2.1.8~~ (j) In making its decision to purchase the Acquired Shares, Subscriber represents that it has relied solely upon the independent investigation made by Subscriber and has independently made its own analysis and decision to enter into this Subscription Agreement and purchase the ~~Issuer’s and Pubco’s representations~~Acquired Shares, ~~warranties and agreements~~ in ~~Section 2.2 hereof. Without limiting the generality of the foregoing~~each case, based on such information as such Subscriber has ~~not relied on~~ deemed appropriate and without reliance upon the Agent or any ~~statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale~~ of ~~the Shares~~Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Acquired Shares, including with respect to the Issuer, ~~Pubco~~the Transactions, the Company, the Charterhouse Parties and ~~the Transactions~~ their respective affiliates and ~~has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Representatives. Subscriber represents and ~~agrees~~ warrants that Subscriber and Subscriber’s professional advisor(s), if any, ~~have had~~ (i) were given the ~~full~~ opportunity to ask ~~such questions~~questions and receive answers concerning the terms and conditions of the Subscription, ~~receive such answers~~the Issuer, the Company, the Charterhouse Parties and to obtain ~~such~~ any additional information ~~as Subscriber~~ which the Issuer possessed or could acquire without unreasonable effort or expense and ~~such Subscriber’s professional advisor(s)~~(ii) received, ~~if any, have deemed necessary~~ reviewed and understood the offering materials made available to ~~make an investment decision~~ it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the ~~Shares~~Transactions. Except for the representations, warranties and agreements of the Issuer set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it may deem appropriate) with respect to the Subscription, the Acquired Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Company and the Charterhouse Parties, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or ~~its representative. Subscriber has~~ by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a ~~pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with~~ placement agent for the Issuer (together with its affiliates and any of its or ~~its representative~~their control persons, officers, directors and employees, the “Agent”), and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~by contact between Subscriber and the Agent. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D ~~under~~ of the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ (l) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Shares, including those set forth in the SEC Documents and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, 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 Acquired Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that ~~Subscriber~~Subscriber has, alone, or together with any professional advisor(s), ~~if any, has~~ adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Acquired Shares (i) is fully consistent with its financial needs, objectives and condition, (ii) comply and is fully consistent with all investment policies, guidelines and other restrictions applicable to it, and (iii) is a fit, proper and suitable investment for it, notwithstanding the substantial risks inherent in investing in or holding the Acquired Shares. Subscriber acknowledges that it is able to bear the substantial risk associated with the purchase of the Acquired Shares, and specifically that a possibility of total loss exists. ~~2.1.12~~ (n) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the fairness of an investment in the Acquired Shares. ~~2.1.13 Subscriber represents and warrants that~~ (o) If Subscriber is ~~not~~ or is acting on behalf of (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or (iv) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, ~~or an entity whose underlying assets are considered to include~~ “~~plan assets” of any such plan~~Similar Laws”, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aan

Appears in 1 contract

Sources: Subscription Agreement (GS Acquisition Holdings Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ PubCo to issue the ~~Shares~~ Securities, to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer~~ SPAC and ~~Pubco~~ PubCo and acknowledges and agrees with ~~the Issuer~~ SPAC and ~~Pubco~~PubCo, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide to PubCo and the SPAC the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act or any other applicable securities laws, and that the ~~Shares~~ Securities have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that (A) the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ PubCo or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Securities may be subject to transfer restrictions under applicable securities laws, and ~~that~~ (C) any certificates or book entries representing the ~~Shares~~ Securities shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ~~the Issuer, Pubco~~PubCo, the ~~Company, the Placement Agents (as defined below)~~ SPAC or any of their respective ~~affiliates~~Affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to ~~purchase~~ acquire the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the Issuer’s and Pubco~~PubCo’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than PubCo concerning SPAC, the ~~Issuer or Pubco concerning the Issuer or Pubco~~ Company, PubCo or the ~~Shares~~ Securities or the offer and sale of the ~~Shares~~Securities. Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Securities (including with respect to the ~~Issuer, Pubco~~Company, the ~~Company~~SPAC, PubCo and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the SPAC’s filings with the Commission. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. Subscriber acknowledges that ▇▇▇▇▇▇▇▇▇ LLC (the “Placement Agent”) and its directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company, the SPAC, PubCo or the Securities or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or the SPAC. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s Affiliates with respect to its decision to invest in the Securities (including information related to the Company, the SPAC, PubCo, or the Securities) and the offer and sale of the Securities, (b) neither the Placement Agent nor any of its Affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Securities, and (c) the Placement Agent shall not have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by the Subscriber, PubCo, the Company, the SPAC, or any other person or entity), whether in contract, tort or otherwise, to the Subscriber, or to any person claiming through the Subscriber, in respect of this offering of the Securities or the Transactions. Subscriber further acknowledges and agrees that certain information provided by PubCo was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber further acknowledges and agrees that the information provided to Subscriber was preliminary and subject to change, and that any changes to such information, including, without limitation, the information in the Registration Statement on Form S-4 and the related proxy statement that PubCo intends to file with the Commission (which will include substantial additional information about the SPAC, PubCo, the Company and the Transactions and will update and supersede the information previously provided to Subscriber) and any changes based on updated information or changes in terms of the Transactions, shall in no way affect Subscriber’s obligation to acquire the Securities hereunder. 2.1.9 Subscriber acknowledges and agrees that the Placement Agent (a) is acting solely in its capacity as placement agent with respect to the issuance and sale of the Securities pursuant to this Subscription Agreement and the Other Subscription Agreements, is not acting as an underwriter, initial purchaser, dealer, financial advisor, fiduciary or in any other capacity and is not and shall not be construed as a fiduciary to the Subscriber, PubCo, the Company, the SPAC, or any other person or entity in connection with this offering of the Securities or the Transactions; (b) has not made and will not make any representation or warranty, whether express or implied, of any kind or character to Subscriber and has not provided any advice or recommendation in connection with this offering of the Securities or the Transactions; (c) will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the offering of the Securities, the Transactions or any of the documents furnished pursuant thereto or in connection therewith or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning PubCo, the Company, the SPAC, this offering of Securities, or the Transactions. 2.1.10 Subscriber became aware of this offering of the ~~Shares~~ Securities solely by means of direct contact ~~between Subscriber and~~ from either the ~~Issuer~~ Placement Agent, the SPAC, or ~~its representative. Subscriber has~~ the Company as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the ~~Issuer~~ SPAC or ~~its representative~~the Company or their respective representatives (including the Placement Agent), and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent, the SPAC, or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Securities (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase and ownership of~~ investment in the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the ~~purchase and sale~~ acquisition of the ~~Shares~~ Securities hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~PubCo. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed judgment upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Shares~~Securities. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity otherwise blocked by any OFAC sanctions program or the U.S. Department of State, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Haymaker Acquisition Corp. 4)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco and acknowledges~~ ProSomnus and agrees with the ~~Issuer~~ Company and ~~Pubco, as of the date hereof and as of the Closing,~~ ProSomnus as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~The~~ Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, ~~each owner of such account is a qualified institutional buyer, and~~ the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of June 10, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-255174) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and ProSomnus (the “Investor Presentation”), a copy of which was furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Company, ProSomnus, or ~~its representative. Subscriber has~~ a representative of the Company or ProSomnus, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Company or ~~its representative~~ProSomnus. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that ~~the purchase and sale of the Shares hereunder meets~~ it (i) ~~the exemptions from filing under FINRA Rule 5123(b)(1)(A)~~ is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the ~~institutional customer exemption under FINRA Rule 2111(b)~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject~~ On the date the Purchase Price will be required to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ be funded pursuant to Section ~~4975~~ 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the ~~Code~~ Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or ~~an employee benefit plan~~ any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~governmental plan (as defined in Section 3(32~~direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~of ERISA)~~under the Securities Act. 2.1.16 No broker, ~~a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA),~~ finder or other ~~plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions~~ financial consultant has acted on behalf of ~~ERISA~~ Subscriber in connection with this Subscription Agreement or the ~~Code, or an entity whose underlying assets are considered~~ transactions contemplated hereby in such a way as to ~~include “plan assets” of~~ create any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied liability on the ~~Issuer~~ Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or ~~Pubco~~ Schedule 13G (or ~~any of their respective affiliates (~~amendments thereto) filed by such Subscriber with the ~~“Transaction Parties”) as the Plan’s fiduciary~~ Commission with respect to ~~its decision~~ the beneficial ownership of the Company’s Common Stock prior to ~~acquire and hold~~ the ~~Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)~~date hereof, ~~and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ape

Appears in 1 contract

Sources: Subscription Agreement (ProSomnus, Inc.)

Appears in 1 contract

Sources: Subscription Agreement (Hudson Executive Investment Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Subscriber hereby represents and warrants ~~to the Issuer and Pubco and acknowledges and agrees with the Issuer and Pubco, as of the date hereof and as of the Closing, as follows~~that: ~~2.1.1~~ (a) If Subscriber is not ~~an individual~~a natural person, (i) Subscriber has been duly organized, formed or ~~incorporated~~ incorporated, as the case may be, and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of ~~incorporation~~ organization, formation or ~~formation~~incorporation, as the case may be, with all requisite power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver~~, and ~~perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual,~~ (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. . (b) If Subscriber is ~~an individual~~a natural person, ~~the~~ (i) Subscriber has all requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement, (ii) Subscriber’s signature on this Subscription Agreement is ~~genuine,~~ genuine and Subscriber has duly executed and delivered this Subscription Agreement, and (iii) Subscriber has all requisite legal competence and capacity to ~~execute~~ acquire and hold the ~~same.~~ Acquired Shares and to execute, deliver and comply with the terms of this Subscription Agreement. (c) Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (d) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not ~~(i)~~ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, if applicable, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if applicable, any of its subsidiaries is subject, which ~~would~~would be reasonably likely to have, individually or in ~~each case~~the aggregate, ~~reasonably be expected to have~~ a ~~materially~~ material adverse effect on the ~~ability~~ business, properties or financial condition of Subscriber, or, if applicable, the stockholders’ equity or results of operations of Subscriber or, if applicable, any of its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement, (ii) ~~if Subscriber is not an individual, result in any violation of the provisions of~~ the organizational documents of Subscriber if Subscriber is not a natural person, or (iii) ~~result in any violation of~~ any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties~~their respective properties that would be reasonably likely to have, ~~which would~~individually or in the aggregate, ~~in each case, reasonably be expected to have~~ a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its~~ comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4~~ (e) Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional “~~accredited investor~~” (within the meaning of Rule 501(a) (1)~~, ~~(2), (3) or (7) under the Securities Act)~~ satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is an ~~institutional account~~ “Institutional Account” as defined in FINRA Rule 4512(c), ) and (iii) experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and in connection with its participation in the Offering. Subscriber represents that it is ~~acquiring~~ purchasing its entire beneficial ownership interest in the Acquired Shares ~~only~~ for its own account ~~or for beneficiaries’ portfolio under its management~~ (and not for the account of others~~, or if Subscriber is subscribing~~ ) for ~~the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer,~~ investment purposes and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with, any~~ to the distribution thereof in violation of the ~~Securities Act~~ securities laws of the United States or any other jurisdiction, provided, that (~~and~~ subject to the securities laws of the United States or any other jurisdiction) disposition of Subscriber’s property shall ~~provide the requested information on Schedule I attached hereto)~~at all times be within Subscriber’s control. ~~Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5~~ Subscriber understands that (1) the Acquired Shares ~~are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares~~ (A) have not been registered under the ~~Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed~~ securities laws of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States ~~within~~ or any other jurisdiction and may be resold or transferred in the ~~meaning~~ United States or otherwise only if registered pursuant to the provisions of ~~Regulation S under~~ the Securities ~~Act,~~ Act or ~~(iii) pursuant to another applicable~~ if an exemption from registration is available, and (B) may only be resold or transferred in compliance with applicable law and the restrictions on transfer set forth in this Subscription Agreement, and that (2) the Issuer is not required to register the Acquired Shares other than as provided in Section 6 of this Agreement. Subscriber further represents and warrants that it will not sell, transfer or otherwise dispose of the Acquired Shares or any interest therein except in a registered transaction or in a transaction exempt from or not subject to the registration requirements of the Securities ~~Act,~~ Act and ~~in each of clauses (i) and (iii),~~ except in accordance with ~~any applicable securities laws~~ the terms and conditions of ~~the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect~~this Subscription Agreement. Subscriber acknowledges that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement. For the avoidance of doubt, the Issuer acknowledges that Subscriber was formed for the purpose of subscribing for the Acquired Shares and that neither Subscriber’s admission of its members, investors, or interest holders nor its distribution of Acquired Shares to its members, investors, or interest holders in a pro rata distribution for no consideration shall be a breach of any of the representations or other agreements made in this Section 5(e). (f) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived. (g) The purchase of Acquired Shares by Subscriber has not been solicited by or through anyone other than the Issuer or the Agent. (h) Subscriber acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement, unless and until such transfer restrictions have been removed in accordance with Section 10(d) of this Subscription Agreement and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. Subscriber also acknowledges that the Acquired Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”), and that the provisions of Rule 144(i) will apply to the Acquired Shares. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Acquired Shares. ~~2.1.6~~ (i) Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that (i) there have been no no, and will be no, representations, warranties, ~~covenants,~~ covenants or agreements (express or implied, of any kind or character) made to Subscriber in connection with Subscriber’s purchase of the Acquired Shares by the Issuer, ~~Pubco~~the Agent, the Company, the ~~Placement Agents (as defined below)~~ Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective ~~affiliates, officers or directors~~Representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer expressly set forth in this Subscription Agreement, (ii) the Agent has not provided any advice or recommendation to Subscriber in connection with Subscriber’s purchase of the Acquired Shares, and (iii) the Agent will not have any responsibility to Subscriber ~~is not relying on~~ with respect to (x) any representations, warranties or ~~covenants other than those expressly set forth~~ agreements made by any person or entity under or in ~~this~~ connection with the Subscription ~~Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I~~ or any of the ~~Employee Retirement Income Security Act of 1974~~documents furnished pursuant thereto or in connection therewith, ~~as amended~~ or the execution, legality, validity or enforceability (~~“ERISA”)~~with respect to any person) thereof, ~~Subscriber represents and warrants that its acquisition and holding of~~ or (y) the ~~Shares will not constitute~~ business, affairs, financial condition, operations, properties or ~~result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)~~prospects of, or any ~~applicable similar law~~other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. ~~2.1.8~~ (j) In making its decision to purchase the Acquired Shares, Subscriber represents that it has relied solely upon the independent investigation made by Subscriber and has independently made its own analysis and decision to enter into this Subscription Agreement and purchase the ~~Issuer’s and Pubco’s representations~~Acquired Shares, ~~warranties and agreements~~ in ~~Section 2.2 hereof. Without limiting the generality of the foregoing~~each case, based on such information as such Subscriber has ~~not relied on~~ deemed appropriate and without reliance upon the Agent or any ~~statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale~~ of ~~the Shares~~Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Acquired Shares, including with respect to the Issuer, ~~Pubco~~the Transactions, the Company, the Charterhouse Parties and ~~the Transactions~~ their respective affiliates and ~~has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Representatives. Subscriber represents and ~~agrees~~ warrants that Subscriber and Subscriber’s professional advisor(s), if any, ~~have had~~ (i) were given the ~~full~~ opportunity to ask ~~such questions~~questions and receive answers concerning the terms and conditions of the Subscription, ~~receive such answers~~the Issuer, the Company, the Charterhouse Parties and to obtain ~~such~~ any additional information ~~as Subscriber~~ which the Issuer possessed or could acquire without unreasonable effort or expense and ~~such Subscriber’s professional advisor(s)~~(ii) received, ~~if any, have deemed necessary~~ reviewed and understood the offering materials made available to ~~make an investment decision~~ it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the ~~Shares~~Transactions. Except for the representations, warranties and agreements of the Issuer set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it may deem appropriate) with respect to the Subscription, the Acquired Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Company and the Charterhouse Parties, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or ~~its representative. Subscriber has~~ by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a ~~pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with~~ placement agent for the Issuer (together with its affiliates and any of its or ~~its representative~~their control persons, officers, directors and employees, the “Agent”), and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~by contact between Subscriber and the Agent. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D ~~under~~ of the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ (l) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Shares, including those set forth in the SEC Documents and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, 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 Acquired Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that ~~Subscriber~~Subscriber has, alone, or together with any professional advisor(s), ~~if any, has~~ adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Acquired Shares (i) is fully consistent with its financial needs, objectives and condition, (ii) comply and is fully consistent with all investment policies, guidelines and other restrictions applicable to it, and (iii) is a fit, proper and suitable investment for it, notwithstanding the substantial risks inherent in investing in or holding the Acquired Shares. Subscriber acknowledges that it is able to bear the substantial risk associated with the purchase of the Acquired Shares, and specifically that a possibility of total loss exists. ~~2.1.12~~ (n) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the fairness of an investment in the Acquired Shares. ~~2.1.13 Subscriber represents and warrants that~~ (o) If Subscriber is ~~not~~ or is acting on behalf of (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code ~~or an employee benefit plan that is a governmental plan~~ of 1986, as amended (~~as defined in Section 3(32) of ERISA~~the “Code”), ~~a church plan~~ (~~as defined in Section 3(33~~iii) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement ~~(each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that~~ described in clauses (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) ~~it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire~~(each, ~~continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a~~ an “~~group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act~~ERISA Plan”), or ~~any successor provision~~(iv) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees an employee benefit plan that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ais

Appears in 1 contract

Sources: Assignment and Subscription Agreement (GSAM Holdings LLC)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Subscribed Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of ~~others,~~ others or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer~~an accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5 Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Subscribed Shares shall contain a legend to such effect. Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Magnet, ~~the Company, the Placement Agents (as defined below)~~ Merger Sub or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco, the Company,~~ Magnet and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. 2.1.9 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its representative, and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber 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 Subscribed Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder. 2.1.17 Unless this Agreement is terminated prior to the Closing Date in accordance with its terms, on the Closing Date Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1 and will have total liquid assets and net assets in excess of the Purchase Price. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company and Sponsor to ~~issue the Shares to Subscriber~~enter into this Subscription Agreement, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco and acknowledges~~ Sponsor and agrees with the ~~Issuer~~ Company and ~~Pubco, as of the date hereof and as of the Closing,~~ Sponsor as follows: 2.1.1 If Subscriber is ~~not~~ an ~~individual~~entity, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, each owner of such account is a “qualified institutional buyer, ” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). Accordingly, the Subscriber understands that the offering of the Securities meets (x) the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J), or (y) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and the institutional customer exemption under FINRA Rule 2111(b). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities, unless all of the equity owners are “accredited investors” (within the meaning of Rule 501(a) of the Securities Act). 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of December 1, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File No. 333-260891) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which has been filed by the Company with the Commission and (iv) the investor presentation by the Company and Target (the “Investor Presentation”), a copy of which has been furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation or any SEC Document. Subscriber acknowledges and agrees that (i) there have been no, and in purchasing the Securities Subscriber has not, relied on any statements, representations, warranties, covenants, agreements or other information provided by ▇▇▇▇▇▇▇▇▇ LLC (the “Placement Agent”) or any of the Placement Agent’s affiliates, agents or representatives with respect to its decision to invest in the Securities, including information related to the Company, Target, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates, agents or representatives has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates, agents or representatives has prepared any disclosure or offering document in connection with the offer and sale of the Securities and (iv) the information provided to Subscriber is preliminary and subject to change. Neither the Placement Agent nor any of the Placement Agent’s affiliates, agents or representatives has made or makes any representation as to the Company, Target or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber (i) agrees the Placement Agent shall not be liable to Subscriber or its affiliates for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities and (ii) releases the Placement Agent in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements related to this Subscription Agreement or the transactions contemplated hereby. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent, the Company, Target or ~~its representative. Subscriber has~~ a representative of the Placement Agent, the Company or Target, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Placement Agent or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent and its affiliates are acting solely as placement agents in connection with the Subscription and are not acting as underwriters or in any other capacity and are not and shall not be construed as a financial advisor, tax advisor or fiduciary for Subscriber or any other person or entity in connection with the Subscription; provided however that the Placement Agent is acting as a financial advisor to the Company in relation to the Transaction. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges and agrees that it has not received any recommendation with respect to the Subscription from the Placement Agent and thus will not be deemed to form a relationship with the Placement Agent in connection with the Subscription that would require the Placement Agent to treat Subscriber as a “retail customer” for purposes of Regulation Best Interest pursuant to Rule 11-1 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or a “retail investor” for purposes of Form CRS pursuant to Rule 17a-14 of the Exchange Act. Accordingly, Subscriber acknowledges and agrees that it is not entitled to the protections or disclosures required by Regulation Best Interest or Form CRS with respect to the Subscription. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities and (B) the purchase and sale of the ~~Shares~~ Securities hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ 2.1.12 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. Subscriber will not look to the Placement Agent for all or part of any such loss or losses, which the Subscriber may suffer. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ao

Appears in 1 contract

Sources: Subscription Agreement (ROC Energy Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the PubCo to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to each of the ~~Issuer~~ SPAC and ~~Pubco and acknowledges~~ the PubCo and agrees with the ~~Issuer~~ SPAC and ~~Pubco, as of~~ the ~~date hereof and as of the Closing,~~ PubCo as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~The~~ Assuming the accuracy of the PubCo’s representations and warranties as set forth in Section 2.2 and the SPAC’s representations and warranties as set forth in Section 2.3 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule I A attached hereto, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, ~~each owner of such account is a qualified institutional buyer, and~~ the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the PubCo or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the PubCo. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ PubCo or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the ~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than~~ SPAC and the ~~Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares~~PubCo contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the SPAC, dated as of September 13, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File ▇▇. ▇▇▇-▇▇▇▇▇▇) (▇▇▇ “▇▇▇▇▇▇▇▇▇▇”), (▇▇) each of the SPAC’s filings with the Commission, together with any amendments, restatements or supplements thereto (the “SEC Documents”) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the SPAC with the Commission and (iv) the investor presentation by the SPAC and the Target (the “Investor Presentation”), a copy of which will be furnished by the SPAC to the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the SPAC’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transactions, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Chardan Capital Markets, LLC (the “Placement Agent”) or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the SPAC, the PubCo, the Target, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Placement Agent nor any of the Placement Agent’s affiliates has made or makes any representation as to the SPAC, the PubCo, the Target or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the SPAC, the PubCo which Subscriber agrees need not be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. 2.1.9 Subscriber became aware of this ~~offering~~ Offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent, the SPAC, the PubCo, the Target or ~~its representative. Subscriber has~~ a representative of the Placement Agent, the SPAC, the PubCo or the Target, or (b) directly from the SPAC or the PubCo as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer~~ SPAC or ~~its representative~~the PubCo, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Placement Agent or ~~its representative~~the PubCo. Subscriber did not become aware of this ~~offering~~ Offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the PubCo represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an the investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if anySecurities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the PubCo. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the ~~offering~~ Offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject~~ On the date the Purchase Price will be required to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ be funded pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code3.1, Subscriber ~~represents and warrants that (i) it has not relied on~~ will have sufficient immediately available funds to pay the ~~Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect~~ Purchase Price pursuant to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the SharesSection 3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act). 2.1.16 The~~ Securities Act (a “Disqualification Event”) is applicable to Subscriber ~~hereby acknowledges and agrees that it will not, nor will~~ or any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in of its Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a506(d) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person Related Parties (as defined ~~in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~below), except, if appl

Appears in 1 contract

Sources: Pipe Subscription Agreement (Caravelle International Group)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein~~ hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any ~~judgment~~Governmental Order, ~~order, rule,~~ rule or regulation of any ~~court or governmental agency or body, domestic or foreign,~~ Governmental Authority having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined~~ aware that the Subscription is being made in ~~FINRA Rule 4512(c), (iii)~~ reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor ~~accounts~~accounts over which Subscriber exercises sole discretion, each owner of such account is a qualified institutional ~~buyer~~buyer or accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the Subscription. Accordingly, Subscriber understands that the Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares ~~have~~ has not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S promulgated under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend to such ~~effect~~effect (the “Securities Act Legend”). Subscriber acknowledges and agrees that the Shares will not immediately be eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A~~ 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco, the Company, the Placement Agents (as defined below)~~ ColdQuanta or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement. No disclosure or offering document has been prepared by ▇.▇. ▇▇▇▇▇▇ Securities LLC or Citigroup Global Markets Inc. (“Citigroup”) or their respective affiliates (collectively, the “Placement Agents”) in connection with the offer and sale of the Shares. Subscriber acknowledges that neither of the Placement Agents nor any of their respective affiliates has provided Subscriber with any information or advice with respect to the Shares nor is ~~not relying on~~ such information or advice necessary or desired. Neither of the Placement Agents nor any ~~representations~~of their respective directors, ~~warranties~~ officers, employees, representatives or ~~covenants other than those expressly set forth in~~ controlling persons has made any independent investigation with respect to the Issuer or ColdQuanta, the Shares or the completeness or accuracy of any information provided to Subscriber. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation as to Issuer or ColdQuanta or the quality or value of Issuer, ColdQuanta or the Shares. Subscriber agrees that neither of the Placement Agents nor any of their respective affiliates or any of their respective affiliates’ control persons, officers, directors or employees, shall be liable to Subscriber pursuant to this Subscription ~~Agreement~~Agreement (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscription. This undertaking is given freely and after obtaining independent legal advice. ~~2.1.7 If~~ 2.1.8 Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to ~~purchase~~ subscribe for the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Subscription Agreement, the SEC Documents and the independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by ~~anyone other than~~ the ~~Issuer~~ Placement Agents or ~~Pubco~~ ColdQuanta concerning the ~~Issuer or Pubco or the Shares~~ Issuer, ColdQuanta or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber ~~has received~~ had access to to, and ~~has had~~ an adequate opportunity to ~~review such~~ review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco, the Company,~~ ColdQuanta and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the Placement Agents or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativetheir respective representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ Rule 502(c) of Regulation D promulgated under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription for, and ownership of of, the Shares, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and ~~Subscriber~~ has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents~~ 2.1.12 Without limiting the representations, warranties and ~~acknowledges that Subscriber~~covenants set forth in this Subscription Agreement, alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is ~~able~~ able, at this time and in the foreseeable future, to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal (U.S. or foreign) or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable Law, provided, that Subscriber is permitted to do so under applicable Law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares ~~were~~ are legally derived. ~~2.1.14~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the ~~Issuer or Pubco or~~ Issuer, nor any of ~~their respective~~ its affiliates (the “~~Transaction~~ Subscriber Parties”) ), has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that the Transaction~~ none of Subscriber Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. ~~2.1.15~~ 2.1.16 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Securities and Exchange Commission (the “Commission”) with respect to the “beneficial ownership” (as such term is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Issuer’s Class A ordinary shares, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange ~~Act of 1934, as amended (the “Exchange~~ Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aof

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp X/Cayman)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to each of the Issuer and ~~Pubco~~ the Company and acknowledges and agrees with each of the Issuer and ~~Pubco~~the Company, as of the date hereof and as of the ~~Closing~~Subscription Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~the Company, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), the issuance by the Issuer of the Subscribed Shares to Subscriber and the consummation of the transactions contemplated herein do not and will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~c) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (a) is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an ~~institutional~~ “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities ~~Act~~Act (“Accredited Investor”), (ii) an Institutional Account as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”) and (iii) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB or an Accredited Investor who is investing in the Subscribed Shares, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the Subscribed Shares only for its own ~~account~~ or for ~~beneficiaries’ portfolio under~~ its ~~management~~ controlled affiliate(s)’s account(s) and not for the account of ~~others~~any other third party, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a ~~qualified institutional buyer~~QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (ivc) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Accordingly, Subscriber understands that the offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be offered, sold, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (ia) to ~~Pubco~~ the Issuer or a subsidiary thereof, (iib) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (~~iii~~c) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each ~~of clauses (i) and (iii)~~case, in accordance with any other applicable securities ~~laws of the states and other jurisdictions of the United States~~laws, and that ~~any certificates~~ the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act, are subject to restrictions on transferability and resale and may not be transferred or ~~book entries representing~~ resold except as permitted under the ~~Shares~~ Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom and (ii) shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the Company, ~~the Placement Agents (as defined below)~~ or any of their respective affiliates, ~~officers~~ or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement. Subscriber further acknowledges that certain information provided to it was based on projections, and ~~Subscriber is not relying~~ such projections were prepared based on ~~any representations~~assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, ~~warranties or covenants other than~~ economic and competitive risks and uncertainties that could cause actual results to differ materially from those ~~expressly set forth~~ contained in ~~this Subscription Agreement~~the projections. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer and the Company expressly set forth in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber acknowledges that it is not relying upon, and has not relied on any representations, warranties, statements or other information provided by anyone ~~other than~~ (including Citigroup Global Markets Inc. and Barclays Capital Inc., collectively in their capacity as placement agents, the ~~Issuer~~ “Placement Agents”) or ~~Pubco concerning~~ any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Issuer~~ foregoing). Subscriber acknowledges that no disclosure or ~~Pubco~~ offering document has been prepared by the Placement Agents or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Shares or~~ foregoing in connection with the offer and sale of the Subscribed Shares. Subscriber acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares, the Issuer and the Company. Subscriber further acknowledges and agrees that Subscriber ~~has received~~ and its professional advisor(s), if any, have received, had access to and ~~has~~ have had an adequate opportunity to review such information as Subscriber ~~deems~~ and its professional advisor(s) have deemed necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has made its own assessment~~ that such information is preliminary and subject to change and that none of the Issuer, the Company or the Placement Agents or any other person is ~~satisfied concerning the relevant tax and other economic considerations relevant~~ under any obligation to ~~the Subscriber’s investment in the Shares~~inform Subscriber regarding any such changes. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such ~~questions~~questions of the Issuer and the Company, receive such answers, including on the financial information, and obtain such information directly as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, and the Company including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Subscribed Shares. ~~2.1.9~~ 2.1.9. Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, the Company or the Transactions, and (d) neither the Placement Agents nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber or any Other Subscriber, or to any person claiming through Subscriber or any Other Subscriber, in respect of the Transactions or pursuant to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the Issuer Class A Ordinary Shares, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby, for any action heretofore or hereafter taken or omitted to be taken by either of them in connection with the purchase of the Subscribed Shares. Subscriber further acknowledges that Barclays Capital Inc. is acting as an M&A financial advisor to the Issuer and each Placement Agent is acting as a capital markets advisor to the Issuer in connection with the Transactions. The Issuer and the Company are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. 2.1.10. Subscriber acknowledges that none of the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to the Issuer, the Company, any of their respective subsidiaries or any of their respective businesses, or the Subscribed Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer or the Company. 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the Company or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or~~general solicitation or general advertising, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aincl

Appears in 1 contract

Sources: Subscription Agreement (Provident Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares~~ Issued Securities and the Warrants to ~~Subscriber~~Subscriber and to induce the Issuer to agree to the other terms and provisions herein, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: ~~2.1.1 If Subscriber is not an individual,~~ 3.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 3.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally and~~ generally, or (ii) principles of equity, whether considered at law or ~~equity~~equity (the “Enforceability Exceptions”). ~~2.1.3~~ 3.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter ~~into and~~ into, or its ability to timely perform its obligations ~~under~~ under, this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 3.1.4 Subscriber (i) is an Institutional Account (as defined in FINRA Rule 4512(c)), (ii) is (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or (y) an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c)~~I, (iii) is acquiring the Convertible Notes, the Shares and the Warrants, as applicable, only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Convertible Notes, the Shares and the Warrants as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer,~~ buyer or an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iv) is not acquiring the Convertible Notes, the Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Convertible Notes, the Shares or the Warrants. ~~2.1.5~~ 3.1.5 Subscriber understands that the Convertible Notes, the Shares and the Warrants are being offered and transferred, as applicable, in a transaction not involving any public offering within the meaning of the Securities Act and that none of the Convertible Notes, the Shares or the Warrants have ~~not~~ been registered under the Securities Act. Subscriber understands that Convertible Notes, the Shares and the Warrants may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Convertible Notes, the Shares or the Warrants shall contain a legend (or book entries with respect to the Convertible Notes, the Shares or the Warrants shall contain a notation) to such effect. Subscriber ~~acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber~~ understands and agrees ~~that~~ that, as a result of the transfer restrictions described ~~herein~~in this Section 3.1.5, Subscriber may not be able to readily resell the ~~Shares and may be required to bear the financial risk of an investment in~~ Convertible Notes, the Shares ~~for an indefinite period of time~~or the Warrants. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Convertible Notes, the Shares or the Warrants. ~~2.1.6~~ 3.1.6 Subscriber understands that each book-entry for the Convertible Notes, the Shares and the Warrants shall contain a notation, and each certificate (if any) evidencing the Convertible Notes, the Shares or the Warrants shall be stamped or otherwise imprinted with a legend, in substantially the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. 3.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Issued Securities and the Warrants directly from ~~Pubco~~the Issuer, is acquiring the Transfer Shares from the Issuer and the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any) directly from the Escrow Agent. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~the Transferors, the ~~Company~~SPAC, the ~~Placement Agents (as defined below)~~ Company or any of their respective agents, affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements made by the Issuer and the SPAC expressly set forth in this Subscription Agreement, the Term Sheet, the Indenture and Subscriber is not relying on any representations, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements other than those made by the Issuer and the SPAC expressly set forth in this Subscription Agreement, the Term Sheet and the Indenture. ~~2.1.7 If~~ 3.1.8 Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Convertible Notes, the Shares and the Warrants, as applicable, will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. ~~2.1.8~~ 3.1.9 In making its decision to subscribe for and purchase the Issued Securities and the Warrants and to acquire the Transfer Shares, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any), Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber~~ Subscriber; provided, however, that the foregoing does not limit or modify the representations or warranties of the Issuer and the ~~Issuer’s and Pubco’s representations, warranties and agreements~~ SPAC in Section ~~2.2 hereof~~3.2 of this Subscription Agreement or the other agreements of the SPAC and the Issuer set forth in this Subscription Agreement or the right of Subscriber to rely thereon. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the SPAC and the Issuer ~~or Pubco~~ concerning the ~~Issuer or Pubco~~ SPAC, the Issuer, the Issued Securities, the Transfer Shares, the Warrants, the Make-Whole Shares or the Additional Make-Whole Shares or the offer and sale of the Issued Securities or the Warrants or the transfer of the Transfer Shares, the Make-Whole Shares (if any) or the Additional Make-Whole Shares (if any), except, in the event that Subscriber is or was a stockholder of the Company as of the date hereof, for any information Subscriber has acquired in such capacity (but as to which information Subscriber acknowledges and agrees neither the Issuer, the Transferors, SPAC, the Company nor any other Person acting on behalf of the Issuer, SPAC or the Company makes or has made in this Subscription Agreement or in the Term Sheet any representation or warranty of any kind whatsoever, including as to the accuracy or completeness thereof, and Subscriber hereby disclaims reliance, and hereby represents that it will not rely, on any actual or purported representation or warranty in respect of such information by the Issuer, the Transferors, SPAC, the Company or any Person acting on behalf of the Issuer, SPAC or the Company). Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any), including with respect to the Issuer, ~~Pubco~~the Transferors, SPAC, the ~~Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Convertible Notes, the Shares and the Warrants, as applicable. ~~2.1.9~~ 3.1.10 (i) Subscriber became aware of this offering and transfer, as applicable, of the Convertible Notes, the Shares and the Warrants solely by means of direct contact between ~~Subscriber~~ Subscriber, on the one hand, and (a) Nomura Securities International, Inc. (“Nomura”) and Barclays Capital Inc. (“Barclays,” and each of Nomura and Barclays, a “Placement Agent” and together the ~~Issuer~~ “Placement Agents”) or ~~its representative.~~ (b) the Issuer, the Transferors and SPAC, on the other hand, (ii) Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with such Placement Agent or the ~~Issuer~~ Issuer, the Transferors and SPAC, as applicable, or its ~~representative~~Representatives, and (iii) the Convertible Notes, the Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and such Placement Agent or the ~~Issuer or its representative~~Issuer, the Transferors and SPAC, as applicable. Subscriber did not become aware of this offering and transfer, as applicable, of the ~~Shares~~Convertible Notes, the Shares or the Warrants, nor were the Convertible Notes, the Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as Subscriber’s financial advisor or fiduciary. Subscriber acknowledges that the Convertible Notes, the Shares and the Warrants (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 3.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Convertible Notes, the Shares and the Warrants. Subscriber 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~~Convertible Notes, the Shares and the Warrants, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~3.1.12 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any) and determined that the Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any), as applicable, are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 3.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Convertible Notes, the Shares or the Warrants or made any findings or determination as to the fairness of an investment in the Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) or the Additional Make-Whole Shares (if any). ~~2.1.13~~ 3.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), ~~and~~ and, to the extent required, its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Convertible Notes, the Shares and the Warrants, as applicable, were legally derived. ~~2.1.14~~ 3.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (ACKRELL SPAC Partners I Co.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to each of the Cayman Issuer and New Pubco and acknowledges and agrees with the Cayman Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ New Pubco as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of each of the ~~Issuer~~ Cayman Issuer, New Pubco, the Seller Representative and ~~Pubco~~FoA, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber is (i) an institutional account as defined in FINRA Rule 4512(c), (ii) a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understand that the Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Cayman Issuer, New Pubco, the ~~Company~~Seller Representative, ~~the Placement Agents (as defined below)~~ FoA or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Cayman Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Cayman Issuer, New Pubco, the ~~Company~~Seller Representative, FoA and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain and review such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares, and Subscriber has made its own assessment and satisfied itself concerning the relevant tax and other economic considerations relevant to its Subscription. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Cayman Issuer or its ~~representative~~representatives. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Cayman Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Cayman Issuer or its ~~representative~~representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Cayman Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is, or is acting on behalf of, (i) an “employee benefit ~~plan~~ plan” within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended (“ERISA”) that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Internal Revenue Code of 1985, as amended (the “Code”) that is subject to ~~Section~~ section 4975 of the ~~Code or~~ Code, (iii) an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is ~~not subject to the foregoing but may be~~ subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to ~~such~~ the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the ~~Code~~Code (collectively, “Similar Laws”), or (iv) an entity whose underlying assets are considered to include “plan assets” of any ~~such plan~~of the foregoing described in clauses (i), ~~account~~(ii) and (iii) (each of the foregoing described in clauses (i), ~~or arrangement~~ (~~each~~ii), (iii) and (iv) referred to as a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that (ix) ~~it has not relied on the Issuer or Pubco or~~ neither Cayman Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire ~~and~~ or hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Shares and (y) the acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code, or a similar violation of any applicable Similar Law. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Cayman Issuer’s Ordinary Shares prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.19 Subscriber understands and agrees that no disclosure or offering document has been prepared in connection with the Subscription by M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC or any of its affiliates (“M▇▇▇▇▇ S▇▇▇▇▇▇”), G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC or any of its affiliates (“G▇▇▇▇▇▇ Sachs”) or Credit Suisse Securities (USA) LLC or any of its affiliates (“Credit Suisse” and, together with M▇▇▇▇▇ S▇▇▇▇▇▇ and G▇▇▇▇▇▇ S▇▇▇▇, the “Placement Agents”). 2.1.20 Subscriber has conducted its own investigation of the Issuer and the Shares and has not relied on any statements or other information provided by the Placement Agents concerning the Issuer, the Shares or the Subscription. Subscriber understands and agrees that the Placement Agents and

Appears in 1 contract

Sources: Subscription Agreement (Replay Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber ~~is not an entity formed for~~ acknowledges that the ~~specific purpose of acquiring~~ offering meets the ~~Shares~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agent or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating our participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets ~~(i)~~ the exemptions from filing under FINRA Rule ~~5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b~~5123(b)(1). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC ~~sanctions programs, including the OFAC~~ Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Company’s common stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any ~~court or governmental agency or body, domestic or foreign,~~ Governmental Authority having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (5), (6) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect~~. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act~~. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC or Blackstone Securities Partners L.P. (collectively, the “Placement Agents”), the Issuer, ~~Pubco~~Altus, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement,~~ made by the Issuer and ~~Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its~~ Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a violation of any applicable ~~similar law~~Similar Law (as defined below). 2.1.8 In making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ Altus and the ~~Company~~Transactions, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has received access to, and has had an adequate opportunity to review (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (ii) a presentation with respect to Altus provided to Subscriber by the Issuer (the “Target Disclosure”). Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber further acknowledges that any information contained in Target Disclosure is preliminary and subject to change, and that any changes to the information contained in the Target Disclosure, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. None of the Placement Agents or any of their respective affiliates has made or makes any representation as to the Issuer, Altus or the quality or value of the Shares, and the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Issuer or Altus which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber, none of the Placement Agents or any of their respective affiliates has acted or shall be construed to have acted as a financial advisor or fiduciary to Subscriber. Subscriber agrees that (a) none of the Placement Agents will have any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with this offering or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, Altus or the offering, and (b) no Placement Agent shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the offering. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its ~~representative~~representatives. ~~Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the~~ The Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its ~~representative~~representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) if not an individual, is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. If the Subscriber is not an individual, Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 ~~Subscriber represents and warrants that~~ Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is (i) an “employee benefit ~~plan~~ plan” within the meaning of Section 3(3) of ERISA that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the ~~Code or~~ Code, (iii) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to Title I of ERISA or Section 4975 of the ~~foregoing~~ Code but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or (iii) an entity whose underlying assets are considered to include “plan assets” of any ~~such plan~~of the foregoing described in clauses (i), ~~account, or arrangement~~ (~~each, a “Plan”~~ii) and (iii) subject to the fiduciary or prohibited transaction provisions of ~~ERISA or~~ ERISA, Section 4975 of the ~~Code~~Code or Similar Laws (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~(i)~~ it has not relied on the Issuer or ~~Pubco or~~ any of ~~their respective~~ its affiliates (the “Transaction Parties”) for investment advice or as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (CBRE Acquisition Sponsor, LLC)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case, reasonably be expected to have a~~ subsidiaries or any of their respective properties that would materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber, other than to the Company or any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each “Subscriber Affiliate”), absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel reasonably satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. Nothing under this Subscription Agreement shall prohibit the subscriber from offering, reselling or transferring any of the Shares to an “accredited investor” pursuant to Section 4(a)(7) under the Securities Act; provided that the transferee agrees to be bound by the terms of this Subscription Agreement. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription ~~Agreement,~~ Agreement and the management presentation provided to Subscriber ~~is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~by the Company. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and upon the ~~Issuer’s~~ representations and ~~Pubco’s representations,~~ warranties ~~and agreements in Section 2.2 hereof. Without limiting the generality~~ of the ~~foregoing, Subscriber has not relied on any statements or other information~~ Company made in this Subscription Agreement and in the management presentation provided ~~by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares~~to Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any,~~ have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information regarding the Company, the Target and the Transaction, as the Subscriber ~~and such Subscriber’s professional advisor(s), if any,~~ have deemed necessary to make an investment decision with respect to the Shares. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of R▇▇▇ Capital Partners, LLC or C▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. Nothing in this Section 2.1.8 shall be deemed to limit the Subscriber’s right to rely on the representations and warranties made to the Subscriber in this Agreement and the management presentation. 2.1.9 Subscriber became aware of this offering of the Shares solely (a) by means of direct contact ~~between Subscriber and~~ from one or both of the ~~Issuer~~ Placement Agents or ~~its representative. Subscriber has~~ (b) directly from the Company as a result of a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program or (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a U.S. financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ will have sufficient available funds at the Closing to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act~~Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below)~~. 2.1.16 The~~ , except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ direct beneficial owner of ~~such~~ Subscriber’s ~~assets and~~ securities for purposes of Rule 506(d) under the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition II Co)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver, and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this Subscription Agreement~~. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement ~~constitutes~~ has been duly authorized, executed and delivered by the ~~valid and binding agreement of the Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of ~~Subscriber~~ Subscriber, or (~~iii~~ii) result in any violation of any law, statute or any judgment, order, rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have ~~a materially~~ an adverse effect on the ability of Subscriber to enter into and timely perform its obligations ~~under~~ under, this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Subscription Agreement. ~~2.1.4~~ 2.1.5 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. ~~2.1.5~~ 2.1.6 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.7 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares (if any) shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. ~~2.1.6~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer~~, Pubco~~, the Company, the Placement Agents (as defined below) or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.9 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.10 If Subscriber is an employee benefit plan that is subject to Title I 1 of ~~the~~ Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law~~. 2.1.8~~ . In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the ~~Issuer or Pubco~~ Issuer, the Company or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such financial and other information provided to Subscriber in the Issuer’s electronic dataroom as of the date hereof as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer~~, Pubco~~, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the SEC Documents (as defined below) in the Issuer’s electronic dataroom as of the date hereof. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed reasonably necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that the Placement Agents (as defined below) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer and/or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any Placement Agent or any of the Placement Agents’ respective affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares, (ii) none of the Placement Agents or any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares and (iii) in connection with the issue and purchase of the Shares, none of the Placement Agents has acted as the Subscriber’s financial advisor or fiduciary. ~~2.1.9~~ 2.1.11 Subscriber became aware of this offering of the Shares solely by means of direct contact between ~~Subscriber and~~ Subscriber, the Company, the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Shares~~ it has not become aware of this offering (i) ~~were not offered to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities ~~Act and~~ Act, or (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. ~~2.1.10~~ 2.1.12 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares~~, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision~~. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.13 Alone, or together with any professional advisor(s), if any, Subscriber represents and acknowledges that Subscriber has ~~adequately analyzed and~~ considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.14 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.15 Neither Subscriber ~~represents and warrants that~~ nor any of its directors, officers, employees or other persons acting on behalf of Subscriber for the purposes of this Subscription Agreement is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.16 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).2.1.17 [Reserved] ~~2.1.16~~ 2.1.18 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the ~~Exchange~~ Securities Act of 1934 (the “Exchange Act”), including all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage or other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers, of the Common Stock or the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a2.1.19 S

Appears in 1 contract

Sources: Subscription Agreement (Cipher Mining Inc.)

Appears in 1 contract

Sources: Subscription Agreement (Finance of America Companies Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares and Series A Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement ~~has~~ and the Series A Warrants (the “Transaction Documents”) have been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement Each of the ~~Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ Transaction Documents is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of ~~this Subscription Agreement~~ each of the Transaction Documents and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under this Subscription Agreement,~~ comply in all material respects with the terms of the Transaction Documents; (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber~~ Subscriber; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ properties that would reasonably be expected to have a the Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under this Subscription Agreement~~comply in all material respects with the Transaction Documents. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber, any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner (each “Subscriber Affiliate”) absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under~~ the Securities ~~Act,~~ or ~~(iii) pursuant~~ an opinion of counsel satisfactory to ~~another~~ the Company that such registration statement is not required and an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Securities. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that ~~there have been~~ no representations, warranties, ~~covenants, or~~ covenants and agreements are being made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in ~~this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~the Transaction Documents. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as ~~amended~~ amended, or (~~“ERISA”), Subscriber represents and warrants that~~ ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information regarding the Company as the Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely ~~by means~~ and directly from the Company as a result of ~~direct contact between Subscriber and the Issuer or its representative. Subscriber has~~ a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and ~~the Issuer or its representative~~Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Company has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient available funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange~~ Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act). 2.1.16 ~~The~~ Subscriber ~~hereby~~ acknowledges that ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (“▇▇▇▇▇▇▇▇▇▇▇”) acted solely as a financial advisor to the Company, and ~~agrees that it will not,~~ neither ▇▇▇▇▇▇▇▇▇▇▇ nor ~~will~~ any ~~person acting at the Subscriber’s direction~~ Affiliate of ▇▇▇▇▇▇▇▇▇▇▇ has provided Subscriber with any information or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply advice with respect to the ~~portion of assets managed by~~ Securities nor is such information or advice necessary or desired. Neither the ~~portfolio manager that~~ ▇▇▇▇▇▇▇▇▇▇▇ nor any Affiliate has made ~~the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to~~ or makes any ~~Class A Ordinary Shares (i) acquired by Subscriber prior~~ representation as to the ~~date hereof~~ Company or ~~(ii) acquired by~~ the ~~Subscriber after~~ quality of the ~~date hereof other than pursuant~~ Securities. In connection with the issuance of the Securities to ~~this Subscription Agreement; provided that the foregoing is not intended to~~Subscriber, ~~and shall not, modify~~ neither ▇▇▇▇▇▇▇▇▇▇▇ nor any ~~restrictions~~ of its Affiliates has acted as a financial advisor or ~~obligations relating~~ fiduciary to ~~such shares which exist independently of this Subscription Agreement~~Subscriber. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (PureCycle Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ the due authorization, execution and delivery of the Subscription Agreement by the Company, this Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Nothing contained herein shall be deemed a representation or warranty by Subscriber to hold the Securities for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities unless such entity is an accredited investor within the meaning of Rule 501(a)(8) under the Securities Act and all of the equity owners in such entity are accredited investors. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend ~~to such effect~~in substantially the form provided in Section 4.4 hereof. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act for at least a year after the Closing Date and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of March 10, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-253108 and 333-254114) on ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇ “▇▇▇▇▇▇▇▇▇▇”), (▇▇) each SEC Document (as defined below) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which has been filed by the Company with the Commission and (iv) the investor presentation by the Company and SoundHound (the “Investor Presentation”), a copy of which has been furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein including pursuant to Section 3.2 hereof. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Guggenheim Securities, LLC (the “Advisor”) or any of the Advisor’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, SoundHound, the Securities and the offer and sale of the Securities, (ii) neither the Advisor, nor any of the Advisor’s affiliates, has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Advisor, nor any of the Advisor’s affiliates, has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Advisor, nor any of the Advisor’s affiliates, has made or makes any representation as to the Company, SoundHound or the quality or value of the Securities and the Advisor and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber agrees the Advisor shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Advisor, the Company, SoundHound or ~~its representative. Subscriber has~~ a representative of the Advisor, the Company or SoundHound, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer or its representative~~Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Advisor has not acted as its financial advisor. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that ~~the purchase and sale of the Shares hereunder meets~~ it (i) ~~the exemptions from filing under FINRA Rule 5123(b)(1)(A)~~ is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the ~~institutional customer exemption under FINRA Rule 2111(b)~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent ~~required~~required by applicable law or regulation, it it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law or regulation, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 If On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 To the extent Subscriber is ~~an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975~~ one of the ~~Code or an employee benefit plan that is a governmental plan (as defined~~ covered persons identified in ~~Section 3(32) of ERISA~~Rule 506(d)(1), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents ~~and warrants~~ that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aSecurities A

Appears in 1 contract

Sources: Subscription Agreement (Archimedes Tech Spac Partners Co)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Shares and the Warrants only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares or the Warrants as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Shares or the Warrants. 2.1.5 Subscriber understands that the Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares and the Warrants have not been registered under the Securities Act. Subscriber understands that the Shares and the Warrants may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares or the Warrants shall contain a legend to such effect. Subscriber acknowledges that the Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares or the Warrants will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares or the Warrants and may be required to bear the financial risk of an investment in the Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Shares or the Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares and the Warrants directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Holdings, ~~the Company, the Placement Agents (as defined below)~~ Music or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Shares and the Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Shares and the Warrants or the offer and sale of the ~~Shares~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Shares and the Warrants, including with respect to the Issuer, ~~Pubco~~Holdings, ~~the Company,~~ Music and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Shares and the Warrants. 2.1.9 Subscriber became aware of this offering of the Shares and the Warrants solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its representative, and the Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the ~~Shares~~Shares and the Warrants, nor were the Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares and the Warrants (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Shares and the Warrants. Subscriber 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~~Shares and the Warrants, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and the Warrants and determined that the Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or the Warrants or made any findings or determination as to the fairness of an investment in the ~~Shares~~Shares or the Warrants. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares and the Warrants were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares (and ~~acknowledges that~~ the Warrants, and none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Shares and the Warrants. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Shares and the Warrants hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares and the Warrants hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares and Warrants. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~The~~ Assuming the accuracy of the Company’s representations andwarranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule I A, and is an “accredited investor” pursuant to Section 2.3 of NI 45-106 or, if a resident in Ontario, Section 73.3(2) of the Securities Act (Ontario), as set out in Schedule B attached hereto and is a “permitted client” (as defined in National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations) as set out in Schedule C attached hereto, ; (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, ~~each owner of such account is a qualified institutional buyer, and~~ the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction, including, for greater certainty, as applicable, the securities laws, regulations and rules, and the blanket rulings and policies and written interpretations of, and multilateral or national instruments adopted by, the securities regulatory authorities of the Canadian jurisdiction in which a Subscriber is resident or is subject to, as the context may require, (“Canadian Securities Laws”) (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. If a Subscriber is subscribing as agent or trustee for a principal (beneficial Subscriber) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully managed by it), it has disclosed the name of the Disclosed Principal to the Company and acknowledges that the Company may be required by law to disclose to certain regulatory authorities the identity of each Disclosed Principal for whom the Subscriber is acting. In the case of a subscription for the Securities by a Subscriber acting as trustee or agent for a fully managed account or as agent for a Disclosed Principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of the fully managed account or Disclosed Principal, as applicable, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of, the fully managed account or Disclosed Principal, as applicable. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. Notwithstanding the foregoing, the Subscriber will consult its own legal advisors with respect to trading in the Securities when issued and with respect to the resale restrictions imposed by the Canadian Securities Laws of the jurisdiction in which the Subscriber resides and other applicable securities laws, and acknowledges and agrees that no representation has been made respecting the applicable hold periods imposed by the Canadian Securities Laws or other resale restrictions applicable to such securities which restrict the ability of the Subscriber (or others for whom it is contracting hereunder) to resell such securities, that the Subscriber (or others for whom it is contracting hereunder) is solely responsible to find out what these restrictions are and the Subscriber is solely responsible (and the Company is not in any way responsible) for compliance with applicable resale restrictions and the Subscriber is aware that it (or disclosed principals for whom it is contracting hereunder) may not be able to resell such securities except in accordance with limited exemptions under the Canadian Securities Laws and other applicable securities laws. The Subscriber further understands and acknowledges that (i) the Company is not a reporting issuer in any province or territory in Canada and its securities are not listed on any stock exchange in Canada and there is currently no public market for the Securities in Canada; and (ii) the Company currently has no intention of becoming a reporting issuer in Canada and the Company is not obligated to file and has no present intention of filing a prospectus with any securities regulatory authority in Canada to qualify the resale of the Securities to the public, or listing the Company’s securities on any stock exchange in Canada and thus the applicable restricted period or hold period may not commence and the Securities may be subject to an unlimited hold period or restricted period in Canada and in that case may only be sold pursuant to limited exemptions under applicable securities legislation. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of July 16, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-256578) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and Nauticus (the “Investor Presentation”), a copy of which will be furnished by the Company to the Commission and to any Canadian securities regulatory authority as may be required under Canadian Securities Laws. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, Nauticus, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Placement Agent nor any of the Placement Agent’s affiliates has made or makes any representation as to the Company, Nauticus or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. The Subscriber acknowledges that, except for the Investor Presentation, it has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum (within the meaning of Canadian Securities Laws), any prospectus, sales or advertising literature, or any other document describing or purporting to describe the Company, Nauticus, their business and affairs or the transactions contemplated herein (including the Transaction) which has been prepared for delivery to, and review by , prospective investors in order to assist them in making an investment decision in respect of the Securities. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent, the Company, Nauticus or ~~its representative. Subscriber has~~ a representative of the Placement Agent, the Company or Nauticus, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Placement Agent or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities ~~laws~~laws or Canadian Securities Laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire at

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ PubCo to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ PubCo and acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to have a ~~materially~~ material adverse effect on ~~the ability~~ Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an "accredited investor" and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and ~~(iv) is~~ not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that the Shares have not been registered under the Securities Act. Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer, PubCo or ~~a subsidiary thereof~~any of their respective subsidiaries, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, or (iv) an ordinary course pledge such as a broker lien over account property generally, and in each of ~~clauses~~ cases (i), (iii) and (~~iii~~iv), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and ~~that~~ (B) any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one year from the filing of “Form 10 information” with the Commission (as defined below) after the Closing Date. Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~PubCo, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the Issuer’s~~ its own investment analysis and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Sharesdue diligence (including professional advice it deems appropriate). Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to ~~the Issuer, Pubco~~PubCo, the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to Subscriber by or on behalf of the Issuer prior to the date of this Subscription Agreement. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber further acknowledges that the information provided to Subscriber (other than the information expressly set forth in the representation and warranties made by the Issuer herein) is preliminary and subject to change. ~~2.1.9~~ 2.1.8 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the Issuer or ~~its representative. Subscriber has~~ PubCo as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ Issuer, PubCo or ~~its representative~~their respective representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~PubCo. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the it did not become aware of this offering of the Shares (i) ~~were not offered to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.9 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.10 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Shares. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.11 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in,~~ or a ~~citizen, national,~~ person or entity otherwise blocked by any OFAC sanctions program or the ~~government~~U.S. Department of State. Subscriber agrees to provide law enforcement agencies, ~~including any political subdivision~~if requested thereby, ~~agency~~such records as required by applicable law, ~~or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject~~ provided that Subscriber is permitted to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bankdo so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 2.1.13 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ PubCo (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a “group” comprised solely of Subscriber and its affiliates. ~~2.1.16 The~~ 2.1.14 If Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) ~~in which the national or subnational governments of a single foreign state have~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) in PubCo, no national or subnational government of a single foreign state has a substantial interest (as defined in 31 C.F.R. § 800.244) in Subscriber. 2.1.15 On each date the Purchase Price would be required to be funded to PubCo pursuant to Section 3 Subscriber will ~~acquire a~~have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16 Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation, warranty, covenant, or information provided by any person, firm or corporation (including the Company, any of its affiliates or any of its or their respective control persons, officers, directors or employees), other than the SEC Documents (as defined below) and the covenants, representations and warranties of the Issuer or PubCo expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Shares. Subscriber agrees that neither (i) any other subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital (including the controlling persons, officers, directors, partners, agents or employees of any such subscriber) nor (ii) the Company, its affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees, shall be liable to Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares hereunder.

Appears in 1 contract

Sources: Subscription Agreement (Model Performance Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver, and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this Subscription Agreement~~. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement ~~constitutes~~ has been duly authorized, executed and delivered by the ~~valid and binding agreement of the Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, if any, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber or any of its subsidiaries, if any, is a party, or by which Subscriber or any of its subsidiaries, if any, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, if any, is subject, which ~~would, in each case,~~ would reasonably be expected to have ~~a materially~~ an adverse effect on the ability of Subscriber to enter into and timely perform its obligations ~~under~~ under, this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, if any, or (iii) result in any violation of any law, statute or any judgment, order, rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~if any, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on~~ Subscriber Material Adverse Effect. 2.1.4 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the ~~ability~~ execution, delivery and performance of ~~Subscriber to enter into and timely perform its obligations under~~ this Subscription Agreement. ~~2.1.4~~ 2.1.5 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. ~~2.1.5~~ 2.1.6 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.7 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares (if any) shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. ~~2.1.6~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the Company, ~~the Placement Agents (as defined below)~~ or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.9 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.10 If Subscriber is an employee benefit plan that is subject to Title I 1 of ~~the~~ Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law~~. 2.1.8~~ . In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the ~~Issuer or Pubco~~ Issuer, the Company or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer~~, Pubco~~, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the SEC Documents (as defined below). Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed reasonably necessary to make an investment decision with respect to the Shares. ~~2.1.9~~ 2.1.11 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Shares~~ it has not become aware of this offering (i) ~~were not offered to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities ~~Act and~~ Act, or (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. ~~2.1.10~~ 2.1.12 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.13 Alone, or together with any professional advisor(s), if any, Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.14 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.15 Neither Subscriber ~~represents and warrants that~~ nor any of its directors, officers, employees or other persons acting on behalf of Subscriber for the purposes of this Subscription Agreement is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.16 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to hold, or transfer the Shares. ~~2.1.15~~ 2.1.17 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding, or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16~~ 2.1.18 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange ~~Act~~ Act, including all types of ~~the Shares until the consummation of the Transactions~~ direct and indirect stock pledges (~~or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit~~ other ~~entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation~~ than pledges in the ~~subscription~~ ordinary course of business as part of prime brokerage or other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including ~~the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of~~ on a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended tototal return basis), and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire asales and other transactions through non-U.S. br

Appears in 1 contract

Sources: Subscription Agreement (YD Biopharma LTD)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform ~~its~~ Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~The~~ Assuming the accuracy of the Company’s representations andwarranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) ), in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring all of the ~~Shares~~ Securities only for his, her or its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more ~~investor~~ investment accounts, ~~each owner of such account is a qualified institutional buyer, and~~ the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is ~~not~~ acquiring the ~~Shares~~ Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I attached hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any ~~certificates or~~ book entries representing the ~~Shares~~ Securities shall contain a restrictive legend to such effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal~~ legal, tax and accounting counsel prior to making any offer, resale, ~~pledge~~transfer, pledge or ~~transfer~~ other disposition of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of July 16, 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-256578) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and Nauticus (the “Investor Presentation”), a copy of which will be furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its professional advisor(s), if any, have had the full opportunity to ask ~~such~~ the Company’s management questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber’s~~ its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, Nauticus, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Placement Agent nor any of the Placement Agent’s affiliates has made or makes any representation as to the Company, Nauticus or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agent, the Company, Nauticus or ~~its representative. Subscriber has~~ a representative of the Placement Agent, the Company or Nauticus, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer~~ Placement Agent or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that ~~the purchase and sale of the Shares hereunder meets~~ it (i) ~~the exemptions from filing under FINRA Rule 5123(b)(1)(A)~~ is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the ~~institutional customer exemption under FINRA Rule 2111(b)~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject~~ On the date the Purchase Price will be required to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ be funded pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code3.1, Subscriber ~~represents and warrants that (i) it has not relied on~~ will have sufficient immediately available funds to pay the ~~Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect~~ Purchase Price pursuant to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the SharesSection 3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act). 2.1.16 The~~ Securities Act (a “Disqualification Event”) is applicable to Subscriber ~~hereby acknowledges and agrees that it will not, nor will~~ or any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in of its Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a506(d) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person Related Parties (as defined ~~in 31 C.F.R. Part 800.224~~below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) ~~in which the national~~ or ~~subnational governments of a single foreign state have a substantial interest~~ (~~as defined in 31 C.F.R. Part 800.244~~iii) ~~will acquire a~~or (d)(3) is appli

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco to issue~~ the ~~Shares to Subscriber~~issuance of the Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco~~ the Placement Agents and acknowledges and agrees with the ~~Issuer~~ Company and ~~Pubco~~the Placement Agents, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Company, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii) result in any violation of any statute or any judgment, order, rule, or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription AgreementMaterial Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act, (c) is an “institutional account” (as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”)), (d) is not a “retail customer” (as defined in Regulation Best Interest promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and (e) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined~~ has exercised independent judgment in ~~FINRA Rule 4512(c)~~evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer~~buyer or an institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber understands that the offering of the Subscribed Shares meets (i) the exemptions from filing under clause (A) and either clause (C) or clause (J) of FINRA Rule 5123(b)(1) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is ~~not~~ aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the investor presentation provided or made available by the Company (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an ~~entity formed for~~ investment in the ~~specific purpose of acquiring the~~ Subscribed Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~2.1.5~~ 2.1.5. If Subscriber is a resident of or incorporated under or otherwise subject to the securities laws of Canada or any province or territory of Canada (a “Canadian Person”), then, in addition to, and not in lieu of, Subscriber’s representations and warranties pursuant to Section 2.1.4, Subscriber represents and warrants that Subscriber (i) is purchasing the Subscribed Shares as principal for its own account, or is deemed to be purchasing the Subscribed Shares as principal for its own account in accordance with applicable Canadian Securities Laws; and (ii) is an “accredited investor” as defined in National Instrument 45-106 - Prospectus Exemptions (“NI 45-106”) and the Securities Act (Ontario) and the subscriber has properly completed the Accredited Investor Certificate attached hereto as Schedule II indicating the Subscriber is an accredited investor as so defined. 2.1.6. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates~~ the Subscribed Shares (a) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or ~~book entries representing~~ resold except as permitted under the ~~Shares~~ Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (b) shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 7 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A promulgated under~~ 144 until October 31, 2024 and that the ~~Securities Act~~provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares~~. 2.1.6~~ . Subscriber ~~understands~~ has determined based on its own independent review and ~~agrees~~ such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is ~~purchasing~~ able at this time and in the ~~Shares directly from Pubco~~foreseeable future to bear the economic risk of a total loss of Subscriber’s investment. Subscriber ~~further~~ acknowledges specifically that ~~there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, Pubco, the Company, the Placement Agents (as defined below) or any~~ a possibility of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreementtotal loss exists. ~~2.1.7~~ 2.1.7. If Subscriber is a Canadian Person, the Subscriber acknowledges that, notwithstanding anything herein to the contrary, including Section 2.1.6, the Subscribed Shares will be subject to resale restrictions under Canadian Securities Laws (in addition to resale restrictions under United States securities laws) and that the Subscribed Shares will have attached to them, whether through electronic deposit, an ownership statement issued under a direct registration statement system or other electronic book-entry system, or on certificates that may be issued, as applicable, a legend (in addition to any other legends applicable to the Subscribed Shares) setting out the resale restrictions under applicable securities legislation substantially in the following form and with the information completed, as applicable: 2.1.8. Subscriber does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the date hereof until the Closing Date or the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of the Company. 2.1.9. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants~~ (ii) a plan, an individual retirement account or other arrangement that ~~its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an employee benefit plan (such as a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”) or (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.10. If Subscriber is or is acting on behalf of a Plan, Subscriber represents and warrants that none of the Company or any ~~applicable similar law~~of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. ~~2.1.8~~ 2.1.11. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Company contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Leerink Partners LLC, Guggenheim Securities, LLC and ▇▇▇▇▇ Fargo Securities, LLC (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the ~~Issuer or Pubco~~ Company and its representatives concerning the ~~Issuer or Pubco~~ Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the ~~Issuer, Pubco, the~~ Company~~, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber ~~has such knowledge~~ represents and ~~experience in~~ warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Subscribed Shares and the business, condition (financial and ~~business matters as~~ otherwise), management, operations, properties and prospects of the Company, including but not limited to ~~be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting~~all business, legal, regulatory, accounting, credit and tax ~~advice as~~ matters. Subscriber further acknowledges that Subscriber has ~~considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that~~ not relied upon the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together Placement Agents in connection with ~~any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of~~ Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits due diligence review of the offering of the Subscribed Shares ~~or made any findings or determination as to~~ and of the ~~fairness of an investment in the Shares~~Company. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank2.1.12. Subscriber ~~represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001,~~ acknowledges and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants agrees that (i) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not ~~relied on~~ acting as an underwriter or in any other capacity in connection with the ~~Issuer or Pubco~~ Subscription and is not and shall not be construed as a fiduciary for Subscriber, the Company or any ~~of their respective affiliates (~~other person or entity in connection with the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)Subscription, ~~and~~ (ii) ~~it has~~ the Placement Agents have not ~~relied on~~ made and will not make any ~~investment~~ representation or warranty, whether express or implied, of any kind or character and have not provided any advice ~~from~~ or recommendation in connection with the ~~Transaction Parties~~ Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) the Placement Agents will have no responsibility to Subscriber with respect to any ~~decision to acquire~~representations, ~~continue to hold~~warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or ~~transfer~~ the ~~Shares. 2.1.15 Subscriber is not currently~~ execution, legality, validity or enforceability (~~and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3~~with respect to any person) or ~~Section 14(d)(2) of~~ any thereof, or the ~~Securities Exchange Act of 1934~~business, ~~as amended~~ condition (~~the “Exchange Act”~~financial and otherwise), management, operations, properties or prospects of, or any ~~successor provision~~other matter concerning, the Company or the Subscription, (iv) ~~acting for~~ the ~~purpose of acquiring~~Placement Agents, ~~holding~~their respective affiliates or any control persons, officers, directors, employees, partners, agents or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act representatives of the ~~Shares until the consummation of the Transactions (~~Placement Agents or ~~such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~their respective affiliates, ~~(a) nothing herein~~ shall ~~prohibit other entities under common management with the Subscriber that~~ have no ~~knowledge of this Subscription Agreement~~ liability or ~~of the Subscriber’s participation in the subscription~~ obligation (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire awithout lim

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Deutsche Bank Securities Inc. and/or RBC Capital Markets, LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. the information provided to the Subscriber is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agents or ~~its representative. Subscriber has~~ directly from the Company as a result of a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any~~Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act~~Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below)~~. 2.1.16 The~~ , except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ direct beneficial owner of ~~such~~ Subscriber’s ~~assets and~~ securities for purposes of Rule 506(d) under the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Fortress Value Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco to issue~~ the ~~Shares to Subscriber~~issuance of the Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco~~ the Placement Agents and acknowledges and agrees with the ~~Issuer~~ Company and ~~Pubco~~the Placement Agents, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Company, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or (iii) result in any violation of any statute or any judgment, order, rule, or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription AgreementMaterial Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act, (c) is an “institutional account” (as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”)), (d) is not a “retail customer” (as defined in Regulation Best Interest promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and (e) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined~~ has exercised independent judgment in ~~FINRA Rule 4512(c)~~evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer~~buyer or an institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber understands that the offering of the Subscribed Shares meets (i) the exemptions from filing under clause (A) and either clause (C) or clause (J) of FINRA Rule 5123(b)(1) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is ~~not~~ aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the investor presentation provided or made available by the Company (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an ~~entity formed for~~ investment in the ~~specific purpose of acquiring the~~ Subscribed Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~2.1.5~~ 2.1.5. If Subscriber is a resident of or incorporated under or otherwise subject to the securities laws of Canada or any province or territory of Canada (a “Canadian Person”), then, in addition to, and not in lieu of, Subscriber’s representations and warranties pursuant to Section 2.1.4, Subscriber represents and warrants that Subscriber (i) is purchasing the Subscribed Shares as principal for its own account, or is deemed to be purchasing the Subscribed Shares as principal for its own account in accordance with applicable Canadian Securities Laws; and (ii) is an “accredited investor” as defined in National Instrument 45-106—Prospectus Exemptions (“NI 45-106”) and the Securities Act (Ontario) and the subscriber has properly completed the Accredited Investor Certificate attached hereto as Schedule II indicating the Subscriber is an accredited investor as so defined. 2.1.6. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates~~ the Subscribed Shares (a) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or ~~book entries representing~~ resold except as permitted under the ~~Shares~~ Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (b) shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 7 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A promulgated under~~ 144 until April 29, 2025, and that the ~~Securities Act~~provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares~~. 2.1.6~~ . Subscriber ~~understands~~ has determined based on its own independent review and ~~agrees~~ such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is ~~purchasing~~ able at this time and in the ~~Shares directly from Pubco~~foreseeable future to bear the economic risk of a total loss of Subscriber’s investment. Subscriber ~~further~~ acknowledges specifically that ~~there~~ a possibility of total loss exists. 2.1.7. If Subscriber is a Canadian Person, the Subscriber acknowledges that, notwithstanding anything herein to the contrary, including Section 2.1.6, the Subscribed Shares will be subject to resale restrictions under Canadian Securities Laws (in addition to resale restrictions under United States securities laws) and that the Subscribed Shares will have ~~been no representations~~attached to them, ~~warranties~~whether through electronic deposit, ~~covenants~~an ownership statement or written notice provided under a direct registration statement system or other electronic book-entry system, or ~~agreements made~~ on certificates that may be issued, as applicable, a legend (in addition to any other legends applicable to the Subscribed Shares) setting out the resale restrictions under applicable securities legislation substantially in the following form and with the information completed, as applicable: 2.1.8. Subscriber by does not have, as of the ~~Issuer~~date hereof, ~~Pubco~~and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the ~~Company,~~ period beginning as of the ~~Placement Agents~~ date hereof until the Disclosure Time (as defined in Section 6.19 below) or ~~any~~ the earlier termination of ~~their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in~~ this Subscription ~~Agreement~~Agreement such Subscriber will not have, ~~and Subscriber~~ entered into, any “put equivalent position” as such term is ~~not relying on any representations, warranties~~ defined in Rule 16a-1 under the Exchange Act or ~~covenants other than those expressly set forth in this Subscription Agreement~~short sale positions with respect to the securities of the Company. ~~2.1.7~~ 2.1.9. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants~~ (ii) a plan, an individual retirement account or other arrangement that ~~its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an employee benefit plan (such as a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”) or (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.10. If Subscriber is or is acting on behalf of a Plan, Subscriber represents and warrants that none of the Company or any ~~applicable similar law~~of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. ~~2.1.8~~ 2.1.11. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Company contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Leerink Partners LLC, Guggenheim Securities, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇ Fargo Securities, LLC (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the ~~Issuer or Pubco~~ Company and its representatives concerning the ~~Issuer or Pubco~~ Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the ~~Issuer, Pubco, the~~ Company~~, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such Subscriber~~▇▇▇▇▇▇▇▇▇▇’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber ~~has such knowledge~~ represents and ~~experience in~~ warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Subscribed Shares and the business, condition (financial and ~~business matters as~~ otherwise), management, operations, properties and prospects of the Company, including but not limited to ~~be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting~~all business, legal, regulatory, accounting, credit and tax ~~advice as~~ matters. Subscriber further acknowledges that Subscriber has ~~considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that~~ not relied upon the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together Placement Agents in connection with ~~any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of~~ Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits due diligence review of the offering of the Subscribed Shares ~~or made any findings or determination as to~~ and of the ~~fairness of an investment in the Shares~~Company. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank2.1.12. Subscriber ~~represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001,~~ acknowledges and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants agrees that (i) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not ~~relied on~~ acting as an underwriter or in any other capacity in connection with the ~~Issuer or Pubco~~ Subscription and is not and shall not be construed as a fiduciary for Subscriber, the Company or any ~~of their respective affiliates (~~other person or entity in connection with the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)Subscription, ~~and~~ (ii) ~~it has~~ the Placement Agents have not ~~relied on~~ made and will not make any ~~investment~~ representation or warranty, whether express or implied, of any kind or character and have not provided any advice ~~from~~ or recommendation in connection with the ~~Transaction Parties~~ Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) the Placement Agents will have no responsibility to Subscriber with respect to any ~~decision to acquire~~representations, ~~continue to hold~~warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or ~~transfer~~ the ~~Shares. 2.1.15 Subscriber is not currently~~ execution, legality, validity or enforceability (~~and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3~~with respect to any person) or ~~Section 14(d)(2) of~~ any thereof, or the ~~Securities Exchange Act of 1934~~business, ~~as amended~~ condition (~~the “Exchange Act”~~financial and otherwise), management, operations, properties or prospects of, or any ~~successor provision~~other matter concerning, the Company or the Subscription, (iv) ~~acting for~~ the ~~purpose of acquiring~~Placement Agents, ~~holding~~their respective affiliates or any control persons, officers, directors, employees, partners, agents or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act representatives of the ~~Shares until the consummation of the Transactions (~~Placement Agents or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire atheir respect

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares~~ Warrant to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Warrant and the Shares issuable upon exercise of the Warrant (collectively, the “Securities”) only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Warrant as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~. ~~2.1.5~~ 2.1.5. Subscriber understands that the ~~Shares are~~ Warrant is being offered in a transaction not involving any public offering within the meaning of the Securities Act and that none of the ~~Shares~~ Securities have ~~not~~ been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing any of the ~~Shares~~ Securities shall contain a ~~legend~~ legend, or each register for the Securities in book entry form shall contain a notation, to such effect. Subscriber acknowledges that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Company files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Warrant. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Warrant directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Supernova, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I~~ 2.1.7. Subscriber’s acquisition and holding of the Warrant will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Shares~~Warrant, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the ~~Shares~~ Warrant or the offer and sale of the ~~Shares~~Warrant. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Warrant, including with respect to the Issuer, ~~Pubco,~~ Supernova and the ~~Company~~Acquisition, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the ~~Shares~~Warrant. Without limiting the generality of the foregoing, Subscriber acknowledges that, as the Subscriber deems necessary, it has reviewed (i) the Supernova’s filings with the Securities and Exchange Commission (the “Commission”), (ii) a presentation with respect to the Issuer provided to Subscriber by the Issuer, (iii) summary key risks related to the Issuer, Supernova and the Acquisition provided to Subscriber by the Issuer and (iv) the financial statements of the Issuer as of December 31, 2020 and 2019 and the years then ended. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Shares~~ Warrant solely by means of direct contact between Subscriber and the Issuer or ~~its representative~~Supernova or a representative of the Issuer or Supernova. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the ~~Issuer~~ Issuer, Supernova or ~~its representative~~their respective representatives, and the ~~Shares were~~ Warrant was offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~Supernova or a representative of the Issuer or Supernova. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor ~~were~~ was any of the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Issuer represents and warrants that none of the Securities (i) ~~were~~ was not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.10. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber ~~understands and acknowledges that the purchase and sale of the Shares hereunder meets~~ (i) ~~the exemptions from filing under~~ is an institutional account as defined in FINRA Rule ~~5123(b)(1)(A) and~~ 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the ~~institutional customer exemption under FINRA Rule 2111(b)~~purchase of the Securities. ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.11. Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.12. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Shares~~Securities. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.13. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. ~~2.1.14~~ 2.1.14. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that ~~(i)~~ it has not relied on the Issuer or ~~Pubco or~~ any of ~~their respective~~ its affiliates (the “~~Transaction~~ Acquisition Parties”) for investment advice as the Plan’s fiduciary with respect to its decision to acquire and hold the ~~Shares (~~Securities, and ~~acknowledges that~~ none of the ~~Transaction~~ Acquisition Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Securities. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)2.1.15. [Reserved.] 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms)2.1.16. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Warrant hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Warrant hereunder. 2.1.17. On the dates each portion of the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1, Subscriber will have sufficient, immediately available funds to pay each portion of the Purchase Price pursuant to Section 3.1. 2.1.18. Subscriber was not formed for the purpose of acquiring the Securities. 2.1.19. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.20. If Subscriber is an individual, then Subscriber resides in the state or province identified in the address of Subscriber set forth on the signature page hereto. If Subscriber is not an individual, then the office or offices of Subscriber where its principal place of business is located is identified in the address or addresses of Subscriber set forth on the signature page hereto. 2.1.21. [Reserved.] 2.1.22.

Appears in 1 contract

Sources: Warrant Subscription Agreement (Rigetti Computing, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ HPX and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ HPX as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ (b) This Subscription Agreement has been duly authorized, approved by all necessary action, validly executed and delivered by Subscriber. If The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is ~~an individual~~fully consistent with all investment policies, guidelines and other restrictions applicable to the ~~signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~HPX, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (c) The execution, delivery and performance ~~by Subscriber~~ of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated ~~herein~~ herein, including the Transactions, do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, ~~which would, in each case,~~ that would reasonably be expected to ~~have a materially adverse effect on~~ adversely affect the Subscriber’s ability ~~of Subscriber~~ to acquire and hold Shares and to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (iA) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (7), (9) or (712) of Regulation D under the Securities Act) ), in either case satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, ~~(ii) is~~ and an “institutional ~~account~~ account” as defined in FINRA Rule 4512(c), and is not an entity formed for the specific purpose of acquiring the Shares, (~~iii~~B) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, (C) has exercised independent judgment in evaluating its participation in the purchase of the Shares, (D) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring its entire beneficial interest in the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction, (ivE) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares, and (F) acknowledges that the offering meets the exemptions from filing under FINRA Rules 5123(b)(1)(A). , (C) and (J); (ii) Subscriber is located outside the United States and not a U.S. person, (A) Subscriber is acquiring the Shares in an ~~entity formed~~ "offshore transaction" meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the offering meets the exemptions from filing under FINRA Rule 5123(c), (C) Subscriber is are aware that the sale to it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the Securities Act, and the Subscriber and the person, if any, for whose account or benefit the Subscriber is acquiring the Shares was located outside the United States and was not a U.S. person at the time (x) the offer was made to it and (y) when the buy order for such Shares was originated, and continues to be located outside the United States and not to be a U.S. person and has not purchased such Shares for the ~~specific purpose~~ account or benefit of ~~acquiring~~ any person located in the ~~Shares~~United States or who is a U.S. person, or entered into any arrangement for the transfer of such Shares or any economic interest therein to any person located in the United States or any U.S. person, and (D) Subscriber is authorized to consummate the purchase of the Shares offered pursuant to this Subscription in compliance with all applicable laws and regulations of the jurisdiction where such sales are to be made; (iii) Subscriber is resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”); and (v) Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or resident in a jurisdiction other than the Federative Republic of Brazil, and able to hold securities and engage in financial settlement of securities transactions with funds held in the United States. The information provided by Subscriber on Schedule I is true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Brazilian Offering Regulations, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities Act, the Brazilian Offering Regulations or any other applicable securities laws. Subscriber understands that the Shares may not be offered, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act or in a transaction not subject thereto, and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions ~~of the United States~~where such offers and sales are made, and that any ~~certificates or~~ book entries or certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer or pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, transfer or ~~transfer~~ disposition of any of the Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, statements or agreements made to Subscriber by or on behalf of the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or HPX or any of their respective affiliates, officers or directors, employees, partners, agents or representatives, or any other party to the Transactions or any other person or entity (including the Placement Agents), expressly or by ~~implication~~implication (including by omission), other than those representations, warranties, covenants, statements and agreements of the Issuer and HPX expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, ~~warranties~~ warranties, covenants, statements or ~~covenants~~ agreements other than those expressly set forth in this Subscription Agreement. ~~2.1.7 If Subscriber is an employee benefit plan~~ (g) Subject to the assumption that ~~is subject to Title I~~ the assets of the Issuer do not constitute “plan assets” under the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), or other plan that is not subject to the ~~foregoing~~ foregoing, but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement ~~(each, a “Plan”)~~ subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the ~~Code~~Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that its acquisition and holding of Shares do not and will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Code, or under Similar Law or otherwise violate the provisions thereunder. (ih) it Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber is not relying upon, and has not relied on upon, any statements, representation or warranty or other information provided by anyone (including HPX, the ~~Issuer or Pubco or~~ Issuer, the Company, the Placement Agents, any of their respective affiliates (or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~“Transaction Parties”~~foregoing) other than the representations and warranties of the Issuer and HPX expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as ~~the Plan’s fiduciary~~ Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), HPX, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. Subscriber has received access to and has had an adequate opportunity to review the documents made available to Subscriber by HPX and the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions and receive such answers from HPX and the Issuer or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to ~~acquire~~ invest in the Shares. Based on such information as Subscriber has deemed appropriate and ~~hold~~ without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and HPX expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the ~~Transaction Parties have not acted~~ information provided to Subscriber is preliminary and subject to change. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the ~~Plan~~Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Issuer, the Company or any other person or entity in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, HPX or any other person or entity in connection with ~~respect to such decision), and~~ the Subscription; (ii) ~~it has not relied on~~ neither the Placement Agents nor any ~~investment advice from the Transaction Parties with respect to any decision to acquire~~of their respective directors, ~~continue to hold~~officers, ~~or transfer the Shares. 2.1.15 Subscriber is not currently (~~employees, advisors, representatives and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will notcontrolling persons have made, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such ~~Subscriber’s assets and the portfolio managers~~ persons make, any representation or warranty, whether express or implied, of any kind or character nor have ~~no knowledge of the investment decisions made by the portfolio managers managing other portions of~~ any such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to persons provided any ~~Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof~~ advice or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined recommendation in ~~31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~connection

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) if not an Israeli resident or entity, is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) if an Israeli resident or entity, is an ~~institutional account as defined~~ investor in ~~FINRA Rule 4512(c)~~one of the categories listed in the First Addendum to the Israeli Securities Law and set forth in Schedule I and satisfies the applicable requirements set forth on Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor who is investing in the Shares, (iii) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and ~~(iv) is~~ not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Securities Law, and that the Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under the Securities Law, and ~~that~~ (C) any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) and the Issuer’s express representations and ~~Pubco’s representations,~~ warranties ~~and agreements~~ in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not otherwise relied on any representations, warranties, statements or other information provided by ~~anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares~~anyone. Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by or on behalf of the Issuer. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that Citigroup Global Markets Inc., ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. and BofA Securities, Inc. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares (including information related to the Issuer, the Company, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives (including the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agents or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares, nor upon the accuracy or adequacy of the Company’s or Issuer’s reports, schedules, forms, statements and other documents required to be filed by the Company and Issuer under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in,~~ or a ~~citizen, national,~~ person or entity otherwise blocked by any OFAC sanctions program or the ~~government~~U.S. Department of State. Subscriber agrees to provide law enforcement agencies, ~~including any political subdivision~~if requested thereby, ~~agency~~such records as required by applicable law, ~~or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject~~ provided that Subscriber is permitted to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bankdo so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on~~ shall at any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire atime be

Appears in 1 contract

Sources: Subscription Agreement (Valens Semiconductor Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ Bridgetown 2 and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ Bridgetown 2 as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~Bridgetown 2, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on ~~the~~ Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) if resident in a member state of the European Economic Area, is ~~an institutional account as defined in FINRA Rule 4512(c~~a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (ivv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is ~~not an entity formed for the specific purpose of acquiring the Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act or in a transaction not subject thereto, and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions ~~of the United States~~where such offers and sales are made, and that any ~~certificates or~~ book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or Bridgetown 2 or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber is an “employee benefit ~~plan that is~~ plan” under ERISA, subject to ~~Title I~~ the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA) constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and ~~Pubco~~Bridgetown 2’s representations, warranties and agreements contained in Section ~~2.2 hereof~~3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer ~~or Pubco~~ and Bridgetown 2 concerning the Issuer or ~~Pubco~~ Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. Subscriber ~~acknowledges and agrees that Subscriber~~ has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, ~~Pubco~~the “Group”), Bridgetown 2, the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber ~~represents~~ has received access to and ~~agrees that~~ has had an adequate opportunity to review the documents made available to Subscriber by Bridgetown 2 and the Company. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such ~~questions,~~ questions and receive such ~~answers~~answers from Bridgetown 2 and the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, ~~and obtain~~ have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares. Subscriber also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the REA Assets, the management accounts of REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the closing of the sale and purchase of the REA Assets (the “REA Closing”) is subject to the satisfaction of certain closing conditions (the “REA CPs”), including REA’s divestment of its 27% interest in 99 Group (the operator of the websites ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇) and the REA Closing may therefore not occur. Subscriber acknowledges that the status of the REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. ~~2.1.9~~ (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections; (iv) the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the Issuer or Bridgetown 2; (v) Subscriber has not relied on any statement, representation, warranty or information made or provided by the Placement Agents, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing, with respect to its decision to invest in the Shares, and the Placement Agents will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (vi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Subscription. (j) Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents, the Issuer or ~~its representative. Subscriber has~~ Bridgetown 2 as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the ~~Issuer~~ Issuer, Bridgetown 2 or ~~its representative~~their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the Issuer or ~~its representative~~Bridgetown 2. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ano

Appears in 1 contract

Sources: Business Combination Agreement (PropertyGuru Group LTD)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of ~~the Closing~~each Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~ii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses (i~~cases ‎(i) and ~~(iii~~‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.14. Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ Altimeter and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ Altimeter as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~Altimeter, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is ~~not an entity formed for the specific purpose of acquiring the Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~certificates or~~ book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~Altimeter, the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer and Altimeter expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber is an “employee benefit ~~plan that is~~ plan” under ERISA, subject to ~~Title I~~ the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA) constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and ~~Pubco~~Altimeter’s representations, warranties and agreements contained in Section ~~2.2 hereof~~3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and Altimeter concerning the Issuer or ~~Pubco~~ Altimeter, respectively, or the Shares or the offer and sale of the Shares. Subscriber ~~acknowledges and agrees that Subscriber~~ has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco~~Altimeter, the Company, the Group and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber ~~represents~~ has received access to and ~~agrees that~~ has had an adequate opportunity to review the documents made available to the Subscriber by Altimeter and the Company. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber also acknowledges that the 2020 historical financial data concerning the Company has been derived based on the Company’s management accounts in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s audited results for 2020 will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Except for the representations, warranties and agreements of the Issuer and Altimeter expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. ~~2.1.9~~ (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) the Subscriber has not relied on any statements or other information provided by the Placement Agents, or any affiliate of a Placement Agent, with respect to its decision to invest in the Shares, and the Placement Agents will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (iv) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Altimeter or the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Subscription. (j) Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents, the Issuer or ~~its representative. Subscriber has~~ Altimeter as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the ~~Issuer~~ Issuer, Altimeter or ~~its representative~~their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the Issuer or ~~its representative~~Altimeter. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to ~~Subscriber~~ it by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) to its knowledge, are not being offered to it in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ (k) Together with its investment adviser, if applicable, Subscriber ~~acknowledges that it~~ is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in financial and business transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets ~~(i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii)~~ the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that~~ (l) Subscriber, alone, or together with any professional advisor(s), ~~if any,~~ has ~~adequately~~ analyzed and considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ (m) Subscriber understands ~~and agrees~~ that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ (n) Subscriber is not ~~(i)~~ a person that is the target of economic or ~~entity named on the List of Specially Designated Nationals and Blocked Persons~~financial sanctions or trade embargoes imposed, ~~the Executive Order 13599 List~~administered or enforced from time to time by relevant governmental authorities, ~~the Foreign Sanctions Evaders List~~including, ~~or the Sectoral Sanctions Identification List, each of which is~~ but not limited those administered by the U.S. ~~Treasury Department’s~~ government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or ~~in any other Executive Order issued by~~ the ~~President~~ U.S. Department of State, the United Nations Security Council, the European Union, or Her Majesty’s Treasury of the United ~~States and administered by OFAC~~ Kingdom (collectively, “~~OFAC Lists~~Sanctions”), including (i) any person listed in any Sanctions-related list of sanctioned persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, or any EU member state, (ii) any person operating, organized or resident in a country or territory which is itself the subject or target of any Sanctions (at the time of this Subscription Agreement, Crimea, Cuba, Iran, North Korea, and Syria), (iii) any person owned or controlled by, or acting on behalf of, ~~a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident~~ any such person or ~~born in,~~ persons; or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv~~) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v~~) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aSubscrib

Appears in 1 contract

Sources: Business Combination Agreement (Grab Holdings LTD)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~Pubco and acknowledges~~ the Placement Agents (as defined herein) and agrees with the ~~Issuer~~ Company and ~~Pubco, as of~~ the ~~date hereof and as of the Closing,~~ Placement Agents as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Company, this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability or legal authority of the Subscriber to ~~enter into and~~ timely ~~perform its obligations under~~ comply in all material respects with the terms of this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto,~~ A. (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Subscription Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another where an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates~~its officers, ~~officers~~ directors or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer~~Company’s ~~and Pubco’s representations, warranties and agreements~~ representations in Section ~~2.2 hereof~~2.2. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has had an adequate opportunity to review the documents provided to the Subscriber by or on behalf of the Company. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of Barclays Capital Inc., Deutsche Bank Securities Inc., Citigroup Global Markets Inc. and/or BofA Securities, Inc. (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company, the Target or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise set forth in this Subscription Agreement. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agents or ~~its representative. Subscriber has~~ directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising~~ advertising, or, to ~~its~~ the Subscriber’s knowledge, general ~~solicitation, including methods described in Section 502(c)~~ solicitation (within the meaning of Regulation ~~D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~D). 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the forms, reports, registration statements and other documents filed by the Company with the Securities and Exchange Commission (the “SEC”) prior to the date of this Subscription Agreement. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any~~Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent ~~required~~required by applicable law and regulation, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law and regulation, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing, will have sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section ~~4975~~ 3.1. 2.1.15 Without limitation of the ~~Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA)~~foregoing, ~~a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to~~ the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~represents~~ hereby further acknowledges and ~~warrants~~ agrees that (i) it the Placement Agent is acting solely as placement agent in connection with the transactions contemplated hereby and is not acting as an underwriter, initial purchaser, dealer or in any other such capacity and is not and shall not be construed as a fiduciary for the Subscriber, the Company or any other person or entity in connection with the transactions contemplated hereby, (ii) the Placement Agent has not ~~relied on~~ made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the ~~Issuer~~ transactions contemplated hereby, and (iii) the Placement Agent will have no responsibility with respect to (A) any representations, warranties or ~~Pubco~~ agreements made by any person or entity under or in connection with the transactions contemplated hereby or any of ~~their respective affiliates~~ the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any ~~decision to acquire, continue to hold~~person) of any thereof, or ~~transfer~~ (B) the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934financial condition, ~~as amended (the “Exchange Act”)~~business, or any ~~successor provision) acting for~~ other matter concerning the ~~purpose of acquiring, holding,~~ Company or ~~disposing of equity securities of Pubco (within~~ the ~~meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16~~ transactions contemplated hereby. The Subscriber ~~hereby acknowledges and agrees that it~~ will ~~not, nor will~~ not look to the Placement Agents for all or part of any ~~person acting at the Subscriber’s direction~~ such loss or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with losses the Subscriber ~~that have no knowledge of this Subscription Agreement or of the Subscriber’s participation~~ may suffer and is able to sustain a complete loss on its investment in the ~~subscription~~ Shares. The Subscriber (~~including~~ for itself and for each account for which the ~~Subscriber~~Subscriber is acquiring the Shares) acknowledges that such Subscriber is aware that Citigroup Global Markets Inc. and Barclays Capital Inc. are acting as the Company’s ~~controlled affiliates and/or affiliates) from entering into any short sales, (b)~~ Placement Agents in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply connection with ~~respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by~~ this Subscription Agreement and ~~(c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior~~ are also acting as financial advisors to the ~~date hereof or (ii) acquired by~~ Target in connection with the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementTransaction. ~~2.1.17 No foreign person (as defined~~ 2.1.16 Subscriber has no binding arrangement in ~~31 C.F.R. Part 800.224) in which~~ place to sell, transfer or otherwise dispose of any of the ~~national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~Shares.

Appears in 1 contract

Sources: Subscription Agreement (Fortress Value Acquisition Corp. II)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend to such effect. Subscriber acknowledges and agrees that the Shares will not immediately be eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A~~ 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco, the Company~~Lucid, the Placement Agents ~~(as defined below)~~ or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ 2.1.8 Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 No disclosure or offering document has been prepared in connection with the offer and sale of the Shares by any of BofA Securities Inc., Citigroup Global Markets Inc. or their respective affiliates (together, the “Placement Agents”). In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Agreement and the independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by ~~anyone other than~~ the ~~Issuer~~ Placement Agents or ~~Pubco~~ Lucid concerning the ~~Issuer or Pubco or the Shares~~ Issuer, Lucid or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber ~~has received~~ had access to to, and ~~has had~~ an adequate opportunity to ~~review such~~ review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco, the Company,~~ Lucid and the Transactions ~~and~~ except that the Subscriber specifically acknowledges that it has ~~made~~ not had access to or reviewed the audited financial statements of Lucid in the proposed business combination, which the Subscriber has considered not necessary to its ~~own assessment and is satisfied concerning the relevant tax and other economic considerations relevant~~ decision to ~~the Subscriber’s investment in~~ purchase the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its ~~representative. Subscriber has a pre-existing substantive relationship~~ representative (~~as interpreted in guidance from~~ including the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativePlacement Agents). Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and ~~Subscriber~~ has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents~~ 2.1.12 Without limiting the representations, warranties and ~~acknowledges that Subscriber~~covenants set forth in this Agreement, alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. ~~2.1.15~~ 2.1.16 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Commission with respect to the beneficial ownership of the Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of the Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Shares hereunder. 2.1.18 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.19 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.20 The Subscriber acknowledges that (i) the Issuer and the Placement Agents currently may have, and later may come into possession of, information regarding the Issuer or Lucid that is not known to the Subscriber and that may be material to a decision to enter into this transactio

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp IV)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Securities, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~ii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Securities, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Subscribed Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Subscribed Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Securities in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the ~~Shares~~ Subscribed Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Subscribed Securities. ~~2.1.5~~ 2.1.5. Subscriber understands that the ~~Shares~~ Subscribed Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Subscribed Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Subscribed Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the ~~Shares~~ Subscribed Securities shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber acknowledges that the ~~Shares~~ Subscribed Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Securities will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the ~~Shares~~ Subscribed Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Subscribed Securities for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Subscribed Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Securities are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Securities, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Subscribed Securities directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the ~~Shares~~ Subscribed Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Shares~~Subscribed Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the ~~Shares~~ Subscribed Securities or the offer and sale of the ~~Shares~~Subscribed Securities. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Subscribed Securities, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Subscribed Securities. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Subscribed Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Shares~~ Subscribed Securities solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the ~~Shares~~Subscribed Securities, nor were the ~~Shares~~ Subscribed Securities offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Shares (i)~~ Issuer represents and warrants that the Subscribed Securities were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Subscribed Securities or made any findings or determination as to the fairness of an investment in the ~~Shares~~Subscribed Securities. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Subscribed Securities were legally derived. ~~2.1.14~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Securities, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Subscribed Securities. ~~2.1.15~~ 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.14. Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Subscribed Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Securities hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Accelerate Diagnostics, Inc)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows:: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement.. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement.~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber ~~is not an entity formed for~~ acknowledges that the ~~specific purpose of acquiring~~ offering meets the ~~Shares.~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares.. Subscriber acknowledges that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agent or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws.. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating our participation in the purchase of the Shares and (B) the purchase and sale of the Shares hereunder meets ~~(i)~~ the exemptions from filing under FINRA Rule ~~5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b~~5123(b)(1). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares.. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC ~~sanctions programs, including the OFAC~~ Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived.. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares.. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Company’s common stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).. 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such tha

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp.)

Appears in 1 contract

Sources: Subscription Agreement (Trine Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ the Placement Agents (as defined below) and acknowledges and agrees with the Issuer and ~~Pubco, as of~~ the ~~date hereof and as of the Closing,~~ Placement Agents as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or ~~body~~instrumentality, court or tribunal (“Governmental Authority”), domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (7), (8), (9), (12) or (713) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act that was also an institutional “accredited investors”, satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached hereto~~hereto in addition to certain other customary information reasonably requested by the Issuer)~~. Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~. ~~2.1.5~~ 2.1.5. Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by Deutsche Bank Securities Inc. (“Deutsche Bank”) or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇” and together with Deutsche Bank, the “Placement Agents”), the Issuer, ~~Pubco~~Rigetti, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer expressly set forth in this Subscription Agreement. Subscriber understands and acknowledges that (i) Deutsche Bank or its affiliate is also acting as a financial advisor to Rigetti in relation to the Acquisition and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is also acting as financial advisor to the Issuer. Subscriber understands and acknowledges (i) that Deutsche Bank’s role as financial advisor to Rigetti and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ role as financial advisor to the Issuer, ~~and Subscriber is not relying on any representations~~in each case, ~~warranties~~ may give rise to potential conflicts of interest or ~~covenants other than those expressly set forth in this Subscription Agreement~~the appearance thereof. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ Rigetti and the ~~Company~~Acquisition, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that, as the Subscriber deems necessary, it has reviewed (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”), (ii) a presentation with respect to Rigetti provided to Subscriber by the Issuer, and (iii) the financial statements of Rigetti as of January 31, 2020 and 2021 and the years then ended. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares~~. 2.1.9~~ . Subscriber ~~became aware of this offering~~ acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares ~~solely by means~~ nor is such information or advice necessary or desired and (ii) neither of ~~direct contact between Subscriber and~~ the ~~Issuer~~ Placement Agents nor any of their respective affiliates has prepared any disclosure or ~~its representative. Subscriber has a pre-existing substantive relationship (as interpreted~~ offering document in ~~guidance from the Commission (as defined below) under the Securities Act)~~ connection with the ~~Issuer~~ offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or ~~its representative~~makes any representation, ~~and~~ express or implied, as to the ~~Shares were offered to Subscriber solely by direct contact between Subscriber and~~ Issuer, Rigetti, their credit quality, the ~~Issuer~~ quality or ~~its representative. Subscriber did not become aware of this offering~~ value of the Shares, ~~nor were~~ the Acquisition or the other transactions contemplated hereby, or the Subscriber’s purchase of the Shares. In connection with the issuance of the Shares ~~offered~~ to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents, to the maximum extent permitted by law, shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Issuer, Rigetti or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. 2.1.9. The Subscriber acknowledges that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other ~~means~~matters referred to herein and the Subscriber has not relied on any investigation that the Placement Agents, any of their respective affiliates or any person acting on their behalf have conducted with respect to the Shares, Rigetti or the Issuer. The Subscriber further acknowledges that it has not relied on any information contained in any research reports prepared by the Placement Agents or any of their respective affiliates. 2.1.10. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12. Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.14. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.15. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aot

Appears in 1 contract

Sources: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Such Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Such Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this ~~Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this~~ Redemption Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Redemption Subscription Agreement has been duly authorized, validly executed and delivered by such Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Redemption Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the~~ a valid and binding agreement ~~of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is~~ enforceable against such Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by such Subscriber of this Redemption Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the ~~property or~~ assets of such Subscriber pursuant ~~to the terms of~~ to, any indenture, mortgage, deed of trust, loan agreement, ~~lease, license,~~ or other agreement or instrument to which such Subscriber is a ~~party,~~ party or by which such Subscriber is bound or to which any of the ~~property or~~ assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ prevent or materially ~~adverse effect on the ability~~ delay or otherwise materially impede such Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Redemption Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or~~ such Subscriber, (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over such Subscriber or any of its ~~properties, which would, in each case,~~ respective properties or assets that would reasonably be expected to have a ~~materially adverse effect on~~ Subscriber Material Adverse Effect, or (iv) with respect to the ~~ability~~ issuance of the Subject Shares to such Subscriber upon the Closing, no notice to, or consent or approval of a Governmental Authority is required for such Subscriber to enter ~~into~~ into, deliver and ~~timely~~ perform its obligations ~~under~~ under, and all transactions contemplated by, this Redemption Subscription Agreement. 2.1.4 Such Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subject Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, others and (iviii) is not acquiring the Subject Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Nothing contained herein shall be deemed a representation or warranty by such Subscriber to hold the Subject Shares for any period of time. Such Subscriber is not an entity formed for the specific purpose of acquiring the Subject Shares. 2.1.5 Such Subscriber understands that the Subject Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subject Shares have not been registered under the Securities ~~Act~~Act except as otherwise required by this Redemption Subscription Agreement. Such Subscriber understands that the Subject Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by such Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a ~~subsidiary~~ Subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur ~~solely outside the United States~~ in an “offshore transaction” within the meaning of Regulation S under the Securities Act, or (iii) pursuant to Rule 144, provided that all of the applicable conditions thereof have been met, (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, or (v) as it forms part of any stock lending program, and in the case of each of clauses (i), (ii) ~~and~~ (iii), (iv) and (v) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Subject Shares shall contain a legend to such effect. Such Subscriber acknowledges that the Subject Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Such Subscriber understands and agrees that as a result of the transfer restrictions ~~described~~ set forth herein, such Subscriber may not be able to readily resell the Subject Shares and may be required to bear the financial risk of an investment in the Subject Shares for an indefinite period of time. Such Subscriber understands that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subject Shares. 2.1.6 Such Subscriber understands and agrees that such Subscriber is purchasing the Subject Shares directly from ~~Pubco~~the Issuer. Such Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to such Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective ~~affiliates~~Affiliates, ~~officers~~ officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Redemption Subscription Agreement, and such Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Redemption Subscription Agreement. In particular, without limiting the foregoing, such Subscriber acknowledges that certain information provided by the Company was based on projections, forecasts, estimates, budgets or other prospective information, and such information is based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections, and neither the Company nor any other person makes any representation relating to any such information. 2.1.7 If Such Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subject Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Subject Shares, such Subscriber represents that it has relied solely upon independent investigation made by such Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, such Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subject Shares or the offer and sale of the Subject Shares. Such Subscriber acknowledges and agrees that such Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as such Subscriber deems necessary in order to make an investment decision with respect to the Subject Shares, including with respect to the ~~Issuer, Pubco,~~ Issuer and the ~~Company~~Company (including giving effect to the Mergers), and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ such Subscriber’s investment in the Subject Shares. Such Subscriber acknowledges that it has reviewed the documents made available to such Subscriber by the Issuer and the Company. Such Subscriber represents and agrees that such Subscriber and such Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as such Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subject Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Such Subscriber acknowledges that the Subject Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Such Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subject Shares. Such Subscriber 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 Subject Shares, and such Subscriber has sought such financial, accounting, ~~legal,~~ legal and tax advice as such Subscriber has considered necessary to make an informed investment decision. ~~The~~ Other than the Sponsor, such Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subject Shares. Such Subscriber understands and acknowledges that the purchase and sale of the Subject Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ such Subscriber represents and acknowledges that such Subscriber has adequately analyzed and fully considered the risks of an investment in the Subject Shares and determined that the Subject Shares are a suitable investment for such Subscriber and that such Subscriber is able to bear the economic risk of a total loss of such Subscriber’s investment in ~~Pubco~~the Issuer. Such Subscriber acknowledges specifically that a possibility of total loss exists. Such Subscriber acknowledges that it shall be responsible for any of such Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Redemption Subscription Agreement, and that neither the Issuer nor the Company has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Redemption Subscription Agreement. 2.1.12 Such Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subject Shares or made any findings or determination as to the fairness of an investment in the Subject Shares. 2.1.13 Such Subscriber represents and warrants that such Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Such Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable Law, provided that ~~if it~~ such Subscriber is permitted to do so under applicable Law. If such Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), such Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Such Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Such Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by such Subscriber and used to purchase the Subject Shares were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject to Title I of ERISA,~~ Except as a ~~plan, an individual retirement account or other arrangement that is subject to Section 4975~~ result of the ~~Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA)~~entry into this Redemption Subscription Agreement, a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 To the extent required, such Subscriber and its affiliates and the Issuer shall each use reasonable best efforts to submit, as promptly as practicable following the date on which the Issuer sends to such Subscriber its written notice of its intent to submit all applicable filings and registrations with, and notifications to, the U.S. Department of Justice, the U.S. Federal Trade Commission and any other Governmental Authority required under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and all other Laws in connection with the transactions contemplated by this Redemption Subscription Agreement and the Merger Agreement, and to use their respective reasonable best efforts to, as promptly as practicable, provide any information requested by the U.S. Department of Justice, the U.S. Federal Trade Commission or any other Governmental Authority to obtain all required authorizations and approvals, and the expiration or termination of any applicable waiting period, under the HSR Act and all other applicable Laws as promptly as practicable after the date hereof. The Issuer shall be responsible for all filing fees payable to a Governmental Authority related to any HSR Act notification applicable in connection with this Redemption Subscription Agreement. 2.1.16 ~~The~~ Such Subscriber ~~hereby acknowledges~~ represents and agrees that ~~it will not~~on the date hereof, ~~nor will any person acting at~~ such Subscriber has access to sufficient available funds to pay the ~~Subscriber’s direction or~~ Backstop Purchase, and on the date the Backstop Purchase would be required to be funded to the Issuer pursuant to ~~any understanding with~~ Section 3.1, such Subscriber will have sufficient immediately available funds to pay the ~~Subscriber, directly or indirectly offer, sell, pledge, contract~~ Backstop Purchase pursuant to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms)Section 3.1. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to From the date hereof until the Closing Date, such Subscriber shall not make any dividends or ~~(ii) acquired by~~ distributions that would render Subscriber unable to satisfy its obligation to pay the ~~Subscriber after~~ Backstop Purchase. From the date hereof ~~other than pursuant~~ until the Closing Date, the Sponsor shall not make any dividends or distributions that would render the Sponsor unable to satisfy all its obligations under this ~~Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this~~ Redemption Subscription Agreement. 2.1.17 ~~No foreign person~~ Such Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to such Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Such Subscriber hereby agrees that it shall notify the Issuer promptly in ~~31 C.F.R. Part 800.224~~writing in the event a Disqualification Event becomes applicable to such Subscriber or any of its Rule 506(d) in Related Parties, except, if applicable, for a Disqualification Event as to which ~~the national~~ Rule 506(d)(2)(ii) or ~~subnational governments~~ (iii) or (d)(3) is applicable. For purposes of this Section 2.1.17, “Rule 506(d) Related Party” shall mean a ~~single foreign state have~~ person or entity that is a ~~substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a~~beneficial owner of

Appears in 1 contract

Sources: Redemption Subscription Agreement (Aurora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ Bridgetown 2 and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ Bridgetown 2 as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~Bridgetown 2, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on ~~the~~ Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) if resident in a member state of the European Economic Area, is ~~an institutional account as defined in FINRA Rule 4512(c~~a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (ivv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (B). The information provided by Subscriber on Schedule I is ~~not an entity formed for the specific purpose of acquiring the Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act or in a transaction not subject thereto, and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions ~~of the United States~~where such offers and sales are made, and that any ~~certificates or~~ book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or Bridgetown 2 or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber is an “employee benefit ~~plan that is~~ plan” under ERISA, subject to ~~Title I~~ the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA) constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and ~~Pubco~~Bridgetown 2’s representations, warranties and agreements contained in Section ~~2.2 hereof~~3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer ~~or Pubco~~ and Bridgetown 2 concerning the Issuer or ~~Pubco~~ Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. Subscriber ~~acknowledges and agrees that Subscriber~~ has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, ~~Pubco~~the “Group”), Bridgetown 2, the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber ~~represents~~ has received access to and ~~agrees that~~ has had an adequate opportunity to review the documents made available to Subscriber by Bridgetown 2 and the Company. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such ~~questions,~~ questions and receive such ~~answers~~answers from Bridgetown 2 and the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, ~~and obtain~~ have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares. Subscriber also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the REA Assets, the management accounts of REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the closing of the sale and purchase of the REA Assets (the “REA Closing”) is subject to the satisfaction of certain closing conditions (the “REA CPs”), including REA’s divestment of its 27% interest in 99 Group (the operator of the websites ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇) and the REA Closing may therefore not occur. Subscriber acknowledges that the status of the REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. ~~2.1.9~~ (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections; (iv) the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the Issuer or Bridgetown 2; (v) Subscriber has not relied on any statement, representation, warranty or information made or provided by the Placement Agents, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing, with respect to its decision to invest in the Shares, and the Placement Agents will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (vi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Subscription. (j) Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agents, the Issuer or ~~its representative. Subscriber has~~ Bridgetown 2 as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the ~~Issuer~~ Issuer, Bridgetown 2 or ~~its representative~~their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the Issuer or ~~its representative~~Bridgetown 2. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ano

Appears in 1 contract

Sources: Subscription Agreement (PropertyGuru Group LTD)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco~~ Company and acknowledges and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ability or legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or, if Subscriber is not an individual, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ability or legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act (~~Act. Subscriber has completed Schedule A following the signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~on Schedule I attached hereto)~~contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or ~~book entries~~ book-entry notations representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the~~ Company, ~~the Placement Agents (as defined below)~~ Sabre or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Company expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I~~ As of the ~~Employee Retirement Income Security Act~~ date of ~~1974, as amended (“ERISA”)~~this Subscription Agreement, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the ~~Issuer, Pubco, the Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transaction. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Company or ~~its representative~~Credit Suisse Securities (USA) LLC (the “Placement Agent”). Subscriber and/or its investment manager or adviser has a pre-existing substantive relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer~~ Company or ~~its representative~~the Placement Agent, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Company or ~~its representative~~the Placement Agent. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. Subscriber acknowledges that (i) it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, the Placement Agent or Sabre), except for the representations and warranties of the Company expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Company, (ii) the Placement Agent and each of its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Shares, or the accuracy, completeness, or adequacy of any information supplied to Subscriber by the Company, and (iii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber ~~understands and~~ acknowledges that the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase ~~and sale~~ of the ~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b)~~Shares. 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a ~~person,~~ person that is named on an the OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of ~~Ukraine,~~ Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to use reasonable best efforts to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is, or is acting (directly or indirectly) on behalf of, an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) ~~it has not relied on~~ none of the ~~Issuer or Pubco or~~ Company, Sabre nor any of their respective employees, representatives or affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares; (ii) the Subscription complies with the terms of the Plan’s governing instruments and all applicable requirements of ERISA, the Code and all applicable Similar Laws; and (iii) to the extent applicable, the decision to invest in the Shares has been made at the recommendation or direction of an “independent fiduciary” (“Independent Fiduciary”) within the meaning of U.S. Code of Federal Regulations 29 C.F.R. Section 2510.3 21(c), as amended from time to time (the “Fiduciary Rule”) who is (A) independent of the Transaction Parties; (B) capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies (within the meaning of the Fiduciary Rule); (C) a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to Subscriber’s investment in the Shares and is responsible for exercising independent judgment in evaluating the investment in the Shares; and (D) aware of and acknowledges that (I) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with Subscriber’s investment in the Shares, and (II) the Transaction Parties have a financial interest in Subscriber’s investment in the Shares on account of the fees and other remuneration they expect to receive in connection with the Subscription and the Transaction. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) with respect to the beneficial ownership of the Company’s Class A common stock at any time or from time to time, Subscriber is not ~~currently (and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3~~) or Section 14(d)(2~~) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) holding or acquiring more than five percent (5%) of the Company’s outstanding Class A common stock, including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~. 2.1.16 The~~ ; provided that Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have makes no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation ~~set forth above shall only apply~~ with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire awhether Subscribe

Appears in 1 contract

Sources: Subscription Agreement (Healthcare Merger Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein do not and~~ in this Subscription Agreement will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber~~ Subscriber; or (~~iii~~c) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (ia) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or and an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on in Schedule ~~I attached hereto~~A, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (ivc) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber, any investment fund or managed account managed by the same investment adviser as Subscriber or having the same general partner or an affiliated general partner (each “Subscriber Affiliate”) absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that ~~there have been~~ no representations, warranties, ~~covenants, or~~ covenants and agreements are being made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective~~ its officers, affiliates, ~~officers or~~ directors, agents or advisors expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (a) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as ~~amended~~ amended, or (~~“ERISA”), Subscriber represents and warrants that~~ b) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the Company. Subscriber represents and agrees that Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, ~~receive~~ and has received such ~~answers,~~ answers and ~~obtain~~ obtained such information regarding the Company as Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary and adequate to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely ~~by means~~ and directly from the Company as a result of ~~direct contact between Subscriber and the Issuer or its representative. Subscriber has~~ a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer or its representative~~Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that each of the Company and the Placement Agent (as defined below) has not acted as its financial advisor, agent or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Shares (ia) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (iib) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets ~~(i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii)~~ the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber~~Subscriber has such knowledge and experience in financial, ~~alone, or together with any professional advisor(s), if any~~investment and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated in this Subscription Agreement. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that neither Subscriber, nor any director or officer of Subscriber, nor to the knowledge of Subscriber, any employee, agent, affiliate or representative of Subscriber or any director or officer of any of its subsidiary is ~~not~~ (ia) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity that is the subject of any sanctions administered or enforced by OFAC , the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities (“Sanctions”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (ivb) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (vc) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank, or (d) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea region of the Ukraine, Russia, Cuba, Iran, North Korea, Sudan and Syria). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, ~~to the extent required,~~ it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against Sanctions and the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient available funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange~~ Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and~~ agrees that ~~it will not, nor will any person acting at~~ the ~~Subscriber’s direction or pursuant to any understanding with~~ Placement Agent may rely upon the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets representations and ~~the portfolio managers have no knowledge of the investment decisions~~ warranties made by ~~the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect~~ Subscriber to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of Company in this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Aeva Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco~~ Company and acknowledges and agrees with the ~~Issuer and Pubco~~Company, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or any other applicable securities laws, and that the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under applicable securities laws, and ~~that~~ (C) any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the~~ Company, the ~~Placement Agents (as defined below)~~ SPAC or any of their respective ~~affiliates~~Affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to ~~purchase~~ acquire the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco~~Company’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the ~~Issuer or Pubco~~ Company concerning the ~~Issuer or Pubco~~ Company or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to the ~~Issuer, Pubco~~Company, the ~~Company~~SPAC, Holdco and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by or on behalf of the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated (the “Placement Agent”) and its directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company, the SPAC, Holdco or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or the SPAC. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s Affiliates with respect to its decision to invest in the Shares (including information related to the Company, the SPAC, Holdco, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agent nor any of its Affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to acquire the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the ~~Issuer~~ Placement Agent or ~~its representative. Subscriber has~~ the Company as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ Company or its ~~representative~~representatives (including the Placement Agent), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase and ownership of~~ investment in the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the ~~purchase and sale~~ acquisition of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in,~~ or a ~~citizen, national,~~ person or entity otherwise blocked by any OFAC sanctions program or the ~~government~~U.S. Department of State. Subscriber agrees to provide law enforcement agencies, ~~including any political subdivision~~if requested thereby, ~~agency~~such records as required by applicable law, ~~or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject~~ provided that Subscriber is permitted to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bankdo so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco~~ Company, Holdco or any of their respective ~~affiliates~~ Affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ If Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) ~~in which the national or subnational governments of a single foreign state have~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) in the Company, no national or subnational government of a single foreign state has a substantial interest (as defined in 31 C.F.R. § 800.244) in the Subscriber. No Subscriber who is a foreign person (as defined in 31 C.F.R. § 800.224) will acquire acontrol (as defined in 31 C.F.R. § 800.208) of the Company. 2.1.17 On each date the Purchase Price would be required to be funded to the Company pursuant to Section 3 Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.18 Subscriber acknowledges that it is not relying upon, and has not relied upon, any st

Appears in 1 contract

Sources: Subscription Agreement (Vine Hill Capital Investment Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (5), (6), (7) or (79) under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ hereto). If Subscriber is not an individual, Subscriber is not an entity formed for the specific purpose of acquiring the Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ▇.▇. ▇▇▇▇▇▇ Securities LLC or ▇▇▇▇▇▇▇▇▇ LLC (together, the “Placement Agents”), the Issuer, ~~Pubco~~OfferPad, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ OfferPad and the ~~Company~~Transactions, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that, as the Subscriber deems necessary, it has reviewed (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (ii) a presentation with respect to OfferPad provided to Subscriber by the Issuer (the “Target Disclosure”). Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) neither of the Placement Agents nor any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation as to the Issuer, OfferPad or the quality or value of the Shares and the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Issuer or OfferPad which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Issuer, OfferPad or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its ~~representative~~representatives, including the Placement Agents. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its ~~representative~~representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.10. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) if not an individual, is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. If Subscriber is not an individual, Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.11. Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.12. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.13. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.14. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that ~~(i)~~ it has not relied on the Issuer or ~~Pubco or~~ any of ~~their respective~~ its affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aPar

Appears in 1 contract

Sources: Subscription Agreement (Supernova Partners Acquisition Company, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares~~ Placement Securities to ~~Subscriber~~Subscriber and to enter into this Subscription Agreement, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ the Placement Agent (as defined herein) and acknowledges and agrees with the Issuer and ~~Pubco, as of~~ the ~~date hereof and as of the Closing,~~ Placement Agent as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached hereto~~or otherwise reasonably acceptable to the Issuer, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Placement Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Placement Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the ~~Shares~~ Placement Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~(and shall provide the requested information on Schedule I attached hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Placement Securities. Subscriber understands that the offering of the Placement Securities hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Placement Securities. Accordingly, Subscriber understands that the ~~Shares~~ offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Placement Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Placement Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Placement Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the ~~Shares~~ Placement Securities shall contain a legend to such effect. Subscriber acknowledges and agrees that the ~~Shares~~ Placement Securities will not immediately be eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule ~~144A~~ 144 promulgated under the Securities Act. Subscriber understands and agrees that the Placement Securities will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Placement Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Placement Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Placement Securities. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Placement Securities directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco, the Company,~~ the Placement ~~Agents (as defined below)~~ Agent or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and~~ . Subscriber acknowledges that it is not relying on upon, and has not relied upon, any ~~representations~~statement, ~~warranties~~ representation or ~~covenants other than those expressly set forth~~ warranty made by the Placement Agent or any of its affiliates or any of its or their control persons, officers, directors and employees, in ~~this Subscription Agreement~~making its investment or decision to invest in the Issuer. ~~2.1.7 If~~ 2.1.8 Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Placement Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 No disclosure or offering document has been prepared in connection with the offer and sale of the Placement Securities by any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Co. or its respective affiliates (the “Placement Agent”). In making its decision to purchase the ~~Shares~~Placement Securities, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Subscription Agreement and the independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by ~~anyone other than~~ the ~~Issuer or Pubco~~ Placement Agent concerning the Issuer ~~or Pubco or the Shares~~ or the offer and sale of the ~~Shares~~Placement Securities, and acknowledges and agrees that the Placement Agent has not provided Subscriber with any information, recommendation or advice with respect to the Placement Securities nor is such information, recommendation or advice necessary or desired. The Placement Agent has not made or does not make any representation as to the Issuer or the quality of the Placement Securities and the Placement Agent may have acquired non-public information with respect to the Issuer which Subscriber agrees need not be provided to it. Subscriber acknowledges and agrees that Subscriber ~~has received~~ had access to to, and ~~has had~~ an adequate opportunity to ~~review such~~ review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the SharesPlacement Securities. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Placement Securities. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Placement Securities. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the ~~Shares~~ Placement Securities solely by means of direct contact between Subscriber and the Issuer or its ~~representative.~~ representative (including the Placement Agent) and Subscriber ~~has~~ had a prior pre-existing ~~substantive~~ relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the Issuer or ~~its representative, and~~ the ~~Shares were offered to Subscriber solely by direct contact between Subscriber and~~ Placement Agent under the ~~Issuer or its representative~~U.S. securities laws interpretations. Subscriber did not become aware of this offering of the ~~Shares~~Placement Securities, nor were the ~~Shares~~ Placement Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under~~ Issuer represents and warrants that the Placement Securities ~~Act and (ii)~~ are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Placement Securities, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, 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~~Placement Securities, and ~~Subscriber~~ has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents~~ 2.1.12 Without limiting the representations, warranties and ~~acknowledges that Subscriber~~covenants set forth in this Subscription Agreement, alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Placement Securities and determined that the Placement Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Placement Securities or made any findings or determination as to the fairness of an investment in the ~~Shares~~Placement Securities. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Placement Securities were legally derived. ~~2.1.14~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer~~ Issuer, its affiliates or ~~Pubco or any of their respective affiliates~~ the Placement Agent (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Placement Securities, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Placement Securities. ~~2.1.15~~ 2.1.16 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Commission with respect to the beneficial ownership of the Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of the Placement Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Placement Securities hereunder. 2.1.18 Subscriber has, and on each date the Purchase Price would be required to

Appears in 1 contract

Sources: Subscription Agreement (DeFi Development Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this ~~Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this~~ Sponsor Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the~~ a valid and binding agreement ~~of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is~~ enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Sponsor Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the ~~property or~~ assets of Subscriber pursuant ~~to the terms of~~ to, any indenture, mortgage, deed of trust, loan agreement, ~~lease, license,~~ or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the ~~property or~~ assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ prevent, materially ~~adverse effect on the ability~~ delay or otherwise materially impede Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Sponsor Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or~~ Subscriber, (iii) result in any violation of any ~~statute~~ Law or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ respective properties or assets that would reasonably be expected to have a ~~materially adverse effect on~~ Subscriber Material Adverse Effect, or (iv) other than the ~~ability~~ notifications to the U.S. Department of Justice, the U.S. Federal Trade Commission and any other Governmental Authority required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), no notice to, or consent or approval of a Governmental Authority is required for Subscriber to enter ~~into~~ into, deliver and ~~timely~~ perform its obligations ~~under~~ under, and all transactions contemplated by, this Sponsor Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, others and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Nothing contained herein shall be deemed a representation or warranty by Subscriber to hold the Shares for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities ~~Act~~Act except as otherwise required in respect of the Shares by this Sponsor Subscription Agreement. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a ~~subsidiary~~ Subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur ~~solely outside the United States~~ in an “offshore transaction” within the meaning of Regulation S under the Securities Act, or (iii) pursuant to Rule 144, provided that all of the applicable conditions thereof have been met, (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, or (v) as it forms part of any stock lending program, and in the case of each of clauses (i), (ii) ~~and~~ (iii), (iv) and (v) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that as a result of the transfer restrictions ~~described~~ set forth herein, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective ~~affiliates~~Affiliates, ~~officers~~ officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Sponsor Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Sponsor Subscription Agreement. Without limiting the foregoing, Subscriber acknowledges that certain information provided by the Company was based on projections, forecasts, estimates, budgets or other prospective information, and such information is based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections, and neither the Company nor any other person, including any Placement Agent (as defined below), makes any representation relating to any such information. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s ~~and Pubco’s~~ representations, warranties and agreements ~~in Section 2.2 hereof~~herein. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the ~~Issuer, Pubco,~~ Issuer and the ~~Company~~Company (including giving effect to the Mergers), and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to Subscriber by the Issuer and the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares~~. 2.1.9~~ . Subscriber ~~became aware~~ acknowledges that any placement agent retained by the Issuer in respect of ~~this offering of~~ any placement to Other Subscribers and its Affiliates (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares ~~solely~~ or the accuracy, completeness or adequacy of any information supplied to Subscriber by ~~means of direct contact between Subscriber and~~ the Issuer or ~~its representative~~the Company. Subscriber acknowledges that (i) it has ~~a pre-existing substantive relationship (as interpreted~~ not relied on any statements or other information provided by any Placement Agent or any of the Placement Agent's Affiliates with respect to its decision to invest in ~~guidance from~~ the ~~Commission (as defined below) under~~ Shares, including information related to the ~~Securities Act) with~~ Issuer, the ~~Issuer or its representative~~Company, the Shares and the ~~Shares were offered to Subscriber solely by direct contact between Subscriber~~ offer and ~~the Issuer or its representative. Subscriber did not become aware of this offering~~ sale of the Shares, and (ii) neither Placement Agent nor ~~were~~ any of its Affiliates have prepared any disclosure or offering document in connection with the ~~Shares offered~~ offer and sale of the Shares. Subscriber understands and acknowledges that any Placement Agent is acting solely in respect of subscriptions by Other Subscribers pursuant to Placement Agent's agreement with the Company, that no Placement Agent has been retained to act as such in respect of Subscriber~~, by~~ 's subscription and Subscriber acknowledges that any ~~other means.~~ Placement Agent has not acted or will act as Subscriber's financial advisor or fiduciary. 2.1.9 Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such financial, accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. Subscriber acknowledges that it shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Sponsor Subscription Agreement, and that neither the Issuer nor the Company has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Sponsor Subscription Agreement. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable Law, provided that ~~if it~~ Subscriber is permitted to do so under applicable Law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject to Title I of ERISA,~~ Except as a ~~plan, an individual retirement account or other arrangement that is subject to Section 4975~~ result of the ~~Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA)~~entry into this Sponsor Subscription Agreement, a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 To the extent required, such Subscriber and its affiliates and the Issuer shall each use reasonable best efforts to submit all applicable filings and registrations with, and notifications to, the U.S. Department of Justice, the U.S. Federal Trade Commission and any other Governmental Authority required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and all other Laws in connection with the transactions contemplated by this Sponsor Subscription Agreement, and to use their respective reasonable best efforts to, as promptly as practicable, provide any information requested by the U.S. Department of Justice, the U.S. Federal Trade Commission or any other Governmental Authority to obtain all required authorizations and approvals, and the expiration or termination of any applicable waiting period, under the HSR Act and all other applicable laws as promptly as practicable after the date hereof. The Issuer shall be responsible for all filing fees payable to a Governmental Authority related to any HSR Act notification applicable in connection with this Sponsor Subscription Agreement. 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges~~ represents and agrees that ~~it will not~~on the date hereof, ~~nor will any person acting at~~ Subscriber has access to sufficient available funds to pay the ~~Subscriber’s direction or~~ Sponsor Purchase Amount, and on the date the Sponsor Purchase Amount would be required to be funded to the Issuer pursuant to ~~any understanding with~~ Section 3.1, Subscriber will have sufficient immediately available funds to pay the ~~Subscriber, directly or indirectly offer, sell, pledge, contract~~ Sponsor Purchase Amount pursuant to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms)Section 3.1. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to From the date hereof until the Closing Date, Subscriber shall not make any dividends or ~~(ii) acquired by~~ distributions that would render Subscriber unable to satisfy its obligation to pay the ~~Subscriber after~~ Sponsor Purchase Amount. From the date hereof ~~other than pursuant~~ until the Closing Date, the Subscriber shall not make any dividends or distributions that would render the Subscriber unable to satisfy all its obligations under this ~~Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this~~ Sponsor Subscription Agreement. 2.1.17 ~~No foreign person~~ Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Issuer promptly in ~~31 C.F.R. Part 800.224~~writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) in Related Parties, except, if applicable, for a Disqualification Event as to which ~~the national~~ Rule 506(d)(2)(ii) or ~~subnational governments~~ (iii) or (d)(3) is applicable. For purposes of ~~a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244~~this Section 2.1.17, “Rule 506(d) ~~will acquire a~~Related Party” sha

Appears in 1 contract

Sources: Subscription Agreement (Aurora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce Pubco to issue the Shares to Subscriber,~~ Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the~~ a valid and binding agreement ~~of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is~~ enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors generally and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the ~~property or~~ assets of Subscriber pursuant ~~to the terms of~~ to, any indenture, mortgage, deed of trust, loan agreement, ~~lease, license,~~ or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the ~~property or~~ assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ prevent, materially ~~adverse effect on the ability~~ delay or otherwise materially impede Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or~~ Subscriber, (iii) result in any violation of any ~~statute~~ Law or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ respective properties or assets that would reasonably be expected to have a ~~materially adverse effect on~~ Subscriber Material Adverse Effect, or (iv) with respect to the ~~ability~~ issuance of the Shares to Subscriber upon the Closing, and not with respect to any voting power exercised by Subscriber after the Closing, no notice to, or consent or approval of a Governmental Authority is required for Subscriber to enter ~~into~~ into, deliver and ~~timely~~ perform its obligations ~~under~~ under, and all transactions contemplated by, this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring the Shares only for its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that as a result of the transfer restrictions described herein, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Issuer, Pubco, the Company, the Placement Agents (as defined below) or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants, and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Aurora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares~~ Convertible Notes to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, ~~Subscriber~~ and has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this ~~Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver, and perform its obligations under this~~ Convertible Note Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Convertible Note Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Convertible Note Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer~~ Issuer, the Guarantor, Holdings and ~~Pubco~~Music, this Convertible Note Subscription Agreement is constitutes the valid and binding ~~obligation~~ agreement of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Convertible Note Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Convertible Note Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1~~)~~, (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I attached hereto~~, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Convertible Notes only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Convertible Notes as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer,~~ buyer and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the ~~Shares~~ Convertible Notes with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act (and shall provide the requested information on Schedule I attached hereto)~~Act. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Convertible Notes. 2.1.5 Subscriber understands that the ~~Shares~~ Convertible Notes are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Convertible Notes have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Convertible Notes may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the ~~Shares~~ Convertible Notes shall contain a legend to such effect. Subscriber ~~acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber~~ understands and agrees that the Convertible Notes will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Convertible Notes and may be required to bear the financial risk of an investment in the ~~Shares~~ Convertible Notes for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Convertible Notes. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Convertible Notes directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~the Guarantor, ~~the Company~~Holdings, ~~the Placement Agents (as defined below)~~ Music or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this ~~Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this~~ Convertible Note Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Convertible Notes will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Convertible Notes, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the ~~Shares~~ Convertible Notes or the offer and sale of the ~~Shares~~Convertible Notes, and Holdings concerning the Guarantor. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Convertible Notes, including with respect to the Issuer, ~~Pubco~~the Guarantor, ~~the Company~~Holdings, Music and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Convertible Notes. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Convertible Notes solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its representative, and the ~~Shares~~ Convertible Notes were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the ~~Shares~~Convertible Notes, nor were the ~~Shares~~ Convertible Notes offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Convertible Notes (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Convertible Notes. Subscriber 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~~Convertible Notes, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Convertible Notes and determined that the Convertible Notes are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Convertible Notes or made any findings or determination as to the fairness of an investment in the ~~Shares~~Convertible Notes. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Convertible Notes were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco or~~ Issuer, the Guarantor nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Convertible Notes, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Convertible Notes. 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Issuer’s Common Stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Convertible Notes hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will ~~acquire a~~not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer or the Guarantor from and after the Closing as a result of the purchase and sale of Convertible Notes hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Convertible Notes. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Convertible Note Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.19 [Reserved].

Appears in 1 contract

Sources: Convertible Note Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933 (as amended, the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares, and (ii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agent or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a ~~non-~~non- U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.18 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) o

Appears in 1 contract

Sources: Subscription Agreement (Innoviz Technologies Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ Bridgetown 2 and acknowledges and agrees with the Issuer and ~~Pubco, as of the date hereof and as of the Closing,~~ Bridgetown 2 as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber~~. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same~~. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and ~~Pubco~~Bridgetown 2, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on ~~the~~ Subscriber’s ability ~~of Subscriber~~ to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) if resident in a member state of the European Economic Area, is ~~an institutional account as defined in FINRA Rule 4512(c~~a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (ivv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (J). The information provided by Subscriber on Schedule I is ~~not an entity formed for the specific purpose of acquiring the Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act or in a transaction not subject thereto, and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions ~~of the United States~~where such offers and sales are made, and that any ~~certificates or~~ book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or Bridgetown 2 or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber is an “employee benefit ~~plan that is~~ plan” under ERISA, subject to ~~Title I~~ the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA) constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and ~~Pubco~~Bridgetown 2’s representations, warranties and agreements contained in Section ~~2.2 hereof~~3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer ~~or Pubco~~ and Bridgetown 2 concerning the Issuer or ~~Pubco~~ Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. Subscriber ~~acknowledges and agrees that Subscriber~~ has received access to and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, ~~Pubco~~the “Group”), Bridgetown 2, the ~~Company,~~ Company and the Transactions and ~~has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber ~~represents~~ has received access to and ~~agrees that~~ has had an adequate opportunity to review the documents made available to Subscriber by Bridgetown 2 and the Company. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such ~~questions,~~ questions and receive such ~~answers~~answers from Bridgetown 2 and the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, ~~and obtain~~ have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares~~. 2.1.9~~ . Subscriber ~~became aware~~ also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of ~~this offering~~ REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the ~~Shares solely by means~~ REA Assets, the management accounts of ~~direct contact between~~ REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its ~~representative~~subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber ~~has a pre-existing substantive relationship~~ further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the closing of the sale and purchase of the REA Assets (~~as interpreted~~ the “REA Closing”) is subject to the satisfaction of certain closing conditions (the “REA CPs”), including REA’s divestment of its 27% interest in ~~guidance from~~ 99 Group (the ~~Commission (as defined below~~operator of the websites ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇) ~~under the Securities Act) with the Issuer or its representative,~~ and the ~~Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did~~ REA Closing may therefore not ~~become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means~~occur. Subscriber acknowledges that the ~~Shares~~ status of the REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. 2.1.10 Subscriber acknowledges ~~that it is aware that there are substantial risks incident to the purchase~~ and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets agrees that: (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits each of the ~~offering~~ Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the ~~Shares or made any findings or determination~~ Placement Agents is acting as ~~to the fairness of~~ an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) underwriter or in any other ~~Executive Order issued by~~ capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the ~~President of the United States and administered by OFAC (collectively, “OFAC Lists”),~~ Subscription; (ii) ~~owned~~ neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or ~~controlled by~~warranty, whether express or ~~acting on behalf of~~implied, ~~a person, that is named on an OFAC List,~~ of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) ~~organized~~certain information provided to it was based on projections, ~~incorporated~~and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, ~~established, located, resident~~ economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or ~~born in, or a citizen, national~~Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the ~~government, including any political subdivision, agency,~~ accuracy or ~~instrumentality thereof,~~ completeness of, ~~Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine,~~ such information or ~~any other country or territory embargoed or subject to substantial trade restrictions by the United States,~~ projections; (iv) ~~a Designated National as defined in~~ the ~~Cuban Assets Control Regulations~~Placement Agents and their respective directors, ~~31 C.F.R. Part 515~~officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the Issuer or Bridgetown 2; (v) ~~a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank.~~ Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on any statement, representation, warranty or information made or provided by the ~~Issuer or Pubco~~ Placement Agents, or any of their respective affiliates (or any control persons, officers, directors, employees, agents or representatives of any of the ~~“Transaction Parties”) as the Plan’s fiduciary~~ foregoing, with respect to its decision to ~~acquire~~ invest in the Shares, and ~~hold~~ the ~~Shares (and acknowledges that the Transaction Parties~~ Placement Agents will have ~~not acted as the Plan’s fiduciary~~ no responsibility with respect to ~~such decision)~~(A) any representations, ~~and~~ warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any ~~decision to acquire, continue to hold~~person) of any thereof, or ~~transfer~~ (B) the ~~Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being~~ business, affairs, financial condition, operations, properties or ~~becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)~~prospects of, or any ~~successor provision~~other matter concerning, the Group or the Subscription; and (vi) ~~acting for~~ neither the ~~purpose~~ Placement Agents nor any of ~~acquiring~~their respective affiliates, ~~holding~~subsidiaries, directors, officers, agents or ~~disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will~~ employees shall have any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription liability (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the ~~portion of assets managed by the portfolio manager that made the investment decision~~ Company or any other person or entity), whether in contract, tort or otherwise, to ~~purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply~~ Subscriber, or to any ~~Class A Ordinary Shares (i) acquired by Subscriber prior to~~ person claiming through Subscriber, in respect of the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSubscription. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Business Combination Agreement (Bridgetown 2 Holdings LTD)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and New Pubco and acknowledges and agrees with the Issuer and New Pubco, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not ~~an individual~~a natural person, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is ~~an individual~~a natural person, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not ~~an individual~~a natural person, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is ~~an individual~~a natural person, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and New Pubco, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement is within the powers of the Subscriber and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or, as applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or, as applicable, any of its subsidiaries is a ~~party,~~ party or by which Subscriber or, as applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, as applicable, any of its subsidiaries is subject, ~~which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the ability of the Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not ~~an individual~~a natural person, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. Subscriber 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 Subscribed Shares, and understands and acknowledges that the historical financial information and forecasts regarding Semantix made available to Subscriber were based on financial information that is preliminary and subject to change based on the completion of the audit of Semantix’s financial statements in accordance with International Financial Reporting Standards and the standards of the Public Company Accounting Oversight Board. Accordingly, Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Issuer, New Pubco nor Semantix has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement. 2.1.6. Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Subscribed Shares. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.7. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction and that neither New Pubco or any other person is required to register the Subscribed Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to New Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 under the Securities Act (“Rule 144”), provided that all of the applicable conditions thereof (including those set out in Rule 144(i) which are applicable to New Pubco) have been met or (~~iii~~iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions of the United ~~States~~States and other applicable jurisdictions, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for ~~resale~~ offer, resale, transfer, pledge or disposition pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer, pledge or otherwise dispose the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.8. Subscriber ~~understands~~ understands, acknowledges and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, New Pubco, ~~the Company~~Semantix, ~~the Placement Agents (as defined below)~~ or any of their respective affiliates, ~~officers~~ control persons, officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.9. If Subscriber is or is acting on behalf of an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.10. Subscriber acknowledges and agrees that Subscriber has received, reviewed and understood the offering materials made available to it in connection with the Transactions and such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including such information regarding the Transactions and the business of Semantix and its subsidiaries. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer and New Pubco contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by ~~anyone~~ anyone, other than the ~~Issuer or Pubco concerning~~ representations, warranties, covenants and agreements of the Issuer or and New Pubco ~~or the Shares or the offer and sale of the Shares~~expressly set forth in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, New Pubco, ~~the Company,~~ Semantix and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Subscribed Shares and Semantix. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, New Pubco and Semantix including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means, including by means of general solicitation. Subscriber acknowledges that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) to its knowledge, are not being offered to Subscriber in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.12. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.13. Subscriber represents and warrants that neither the Subscriber nor, if Subscriber is not a natural person, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a ~~person~~ person, government, or governmental entity ~~named on~~ that is the ~~List~~ target of ~~Specially Designated Nationals and Blocked Persons~~economic or financial sanctions requirements, or trade embargoes imposed, administered, or enforced by the U.S. government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State), the ~~Executive Order 13599 List~~United Nations, the ~~Foreign Sanctions Evaders List~~European Union or any individual European Union member state, the United Kingdom, or other governmental authority (collectively, “Sanctions”), to the ~~Sectoral Sanctions Identification List~~extent applicable, ~~each~~ including (A) a person listed on any list of ~~which is administered~~ sanctioned persons maintained by the U.S. Treasury Department’s Office of Foreign Assets ~~Control (“OFAC”) or in any other Executive Order issued by~~ Control, the ~~President~~ U.S. Department of State, the United ~~States and administered by OFAC (collectively~~Nations, ~~“OFAC Lists”)~~the European Union or any individual European Union member state, ~~(ii) owned or controlled by~~the United Kingdom, or ~~acting on behalf of~~other governmental authority, to the extent applicable; (B) a ~~person, that is named on an OFAC List, (iii)~~ person organized, incorporated, established, located, or resident ~~or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of,~~ in Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to ~~substantial trade restrictions~~ comprehensive Sanctions; (C) any person directly or indirectly owned or controlled by any person or persons described in the ~~United States,~~ foregoing clauses (ivA) and (B); (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (together with (i) and (ii), a “Prohibited Investor”). Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with ~~OFAC-administered sanctions programs, including~~ applicable Sanctions and that for the ~~screening of its investors against~~ past five years, Subscriber has been in compliance with applicable Sanctions and the ~~OFAC sanctions programs~~BSA/PATRIOT Act, ~~including the OFAC Lists~~as applicable. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Alpha Capital Acquisition Co)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Company, this Subscription Agreement is ~~the~~ a valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) ~~conflict with or~~ result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to~~ under the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or ~~governmental agency~~ government or ~~body~~governmental, ~~domestic~~ tribunal, judicial, administrative federal, state, local, or ~~foreign~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities unless such entity is an accredited investor within the meaning of Rule 501(a)(8) under the Securities Act and all of the equity owners in such entity are accredited investors. Subscriber understands and acknowledges that the purchase of the Securities pursuant to this Agreement is intended the exemptions from filing under FINRA Rule 5123(b)(1)(A)(C) or (J). 2.1.5 Subscriber understands that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act,~~ Act with respect to the Securities except (i) to ~~Pubco~~ the Company or a subsidiary thereof, or (ii~~) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii~~) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States,~~ Act that is available and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a legend to such effect. Subscriber ~~acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber~~ understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as ~~amended~~ amended, or (~~“ERISA”), Subscriber represents and warrants that~~ ii) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, ~~warranties~~ warranties, and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the ~~Shares~~Securities. The Subscriber acknowledges that (i) it has not relied on any statements or other information provided by ▇▇▇▇▇ and Company, LLC (the “Placement Agents” or any of the Placement Agents’ affiliates with respect to its decision to invest in the Securities, including information related to the Company, the Securities and the offer and sale of the Securities and (ii) the information provided to the Subscriber is preliminary and subject to change. 2.1.9 Subscriber became aware of this offering of the ~~Shares~~ Securities solely (a) by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agents, the Company, Evolv or ~~its representative. Subscriber has~~ a representative of the Company or Evolv, or (b) directly from the Company as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. Subscriber 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~~Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor and capable of evaluating investment risks independently and (ii) has exercised independent judgment in evaluating our participation in the purchase of the Securities and (B) the purchase and sale of the ~~Shares~~ Securities hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has ~~adequately~~ analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, ; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, ; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber~~ Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it it, directly or indirectly, through a third party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Securities were legally derived. 2.1.14 ~~If Subscriber is an employee benefit plan that is subject~~ On the date the Purchase Price will be required to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ be funded to the Company pursuant to Section ~~4975~~ 3.1, Subscriber will have sufficient funds to pay the Purchase Price. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the ~~Code~~ Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or ~~an employee benefit plan~~ any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~governmental plan (as defined in Section 3(32~~direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~of ERISA)~~under the Securities Act. 2.1.16 No broker, ~~a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA),~~ finder or other ~~plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions~~ financial consultant has acted on behalf of ~~ERISA~~ Subscriber in connection with this Subscription Agreement or the ~~Code, or an entity whose underlying assets are considered~~ transactions contemplated hereby in such a way as to ~~include “plan assets” of~~ create any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied liability on the ~~Issuer~~ Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or ~~Pubco~~ Schedule 13G (or ~~any of their respective affiliates (~~amendments thereto) filed by such Subscriber with the ~~“Transaction Parties”) as the Plan’s fiduciary~~ Commission with respect to ~~its decision~~ the beneficial ownership of the Company’s Common Stock prior to ~~acquire and hold~~ the ~~Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)~~date hereof, ~~and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aa substantial interest in the Company as a result of the purchase and sale of Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of Securities hereunder

Appears in 1 contract

Sources: Subscription Agreement (NewHold Investment Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ PubCo to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco~~ PubCo and acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject~~, which would~~, in each case, which would reasonably be expected to have a ~~materially~~ material adverse effect on ~~the ability~~ Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer, ” or an "accredited investor" and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, and ~~(iv) is~~ not ~~acquiring the Shares~~ with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that the Shares have not been registered under the Securities Act. Subscriber understands that (A) the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer, PubCo or ~~a subsidiary thereof~~any of their respective subsidiaries, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, or (iv) an ordinary course pledge such as a broker lien over account property generally, and in each of ~~clauses~~ cases (i), (iii) and (~~iii~~iv), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and ~~that~~ (B) any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one year from the filing of “Form 10 information” with the Commission (as defined below) after the Closing Date. Subscriber understands and agrees that the Shares will be subject to the foregoing restrictions and, as a result of ~~the transfer restrictions described herein~~these restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~PubCo, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the Issuer’s~~ its own investment analysis and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Sharesdue diligence (including professional advice it deems appropriate). Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to ~~the Issuer, Pubco~~PubCo, the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to Subscriber by or on behalf of the Issuer prior to the date of this Subscription Agreement. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and ~~such~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber further acknowledges that the information provided to Subscriber (other than the information expressly set forth in the representation and warranties made by the Issuer herein) is preliminary and subject to change. ~~2.1.9~~ 2.1.8 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the Issuer or ~~its representative. Subscriber has~~ PubCo or their respective representatives as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the ~~Issuer~~ Issuer, PubCo or ~~its representative~~their respective representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~its representative~~PubCo or their respective representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that it did not become aware of this offering of the Shares (i) ~~were not offered to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.9 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.10 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Shares. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.11 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), ~~(ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in,~~ or a ~~citizen, national,~~ person or entity otherwise blocked by any OFAC sanctions program or the ~~government~~U.S. Department of State. Subscriber agrees to provide law enforcement agencies, ~~including any political subdivision~~if requested thereby, ~~agency~~such records as required by applicable law, ~~or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject~~ provided that Subscriber is permitted to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bankdo so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC Lists~~SDN List. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 2.1.13 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ PubCo (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a “group” comprised solely of Subscriber and its affiliates. ~~2.1.16 The~~ 2.1.14 If Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) ~~in which the national or subnational governments of a single foreign state have~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) in PubCo, no national or subnational government of a single foreign state has a substantial interest (as defined in 31 C.F.R. § 800.244) in Subscriber. 2.1.15 On each date the Purchase Price would be required to be funded to PubCo pursuant to Section 3 Subscriber will ~~acquire a~~have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16 Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation, warranty, covenant, or information provided by any person, firm or corporation (including the Company, any of its affiliates or any of its or their respective control persons, officers, directors or employees), other than the SEC Documents (as defined below) and the covenants, representations and warranties of the Issuer or PubCo expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Shares. Subscriber agrees that neither (i) any other subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital (including the controlling persons, officers, directors, partners, agents or employees of any such subscriber) nor (ii) the Company, its affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees, shall be liable to Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares hereunder.

Appears in 1 contract

Sources: Subscription Agreement (Model Performance Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Units to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to to[1] the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”) or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber ~~(i)~~ is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act of 1933, as amended (the “Securities Act”)) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~i) is acquiring the ~~Shares~~ Units only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such account, and (ivii) is not acquiring the ~~Shares~~ Units with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the ~~Shares~~ Units are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Units may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur ~~solely~~ outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and ~~in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and~~ that any certificates ~~or book entries~~ representing the Shares and Warrants shall contain a legend to such effect. Subscriber acknowledges that the Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares and Warrants will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and/or Warrants and may be required to bear the financial risk of an investment in the Shares and Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Shares and/or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Units directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ Subscriber represents and warrants that its acquisition and holding of the Shares and Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesSubscriber. Subscriber ~~acknowledges and agrees~~ represents that ~~Subscriber~~ it has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the SharesUnits. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Units. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Shares~~ Company represents and warrants that the Units (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, except for the statements, representations and warranties contained in the private placement documentation. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Units. Subscriber 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~~Units, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Units and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Units or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Units were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the applicable purchase price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber ~~is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2~~represents that no disqualifying event described in Rule 506(d)(1)(i-viii) of the Securities ~~Exchange~~ Act (a “Disqualification Event”) is applicable to Subscriber or any of ~~1934,~~ its Rule 506(d) Related Parties (as ~~amended (the “Exchange Act”~~defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~any successor provision~~(iii) ~~acting for the purpose of acquiring, holding,~~ or ~~disposing of equity securities of Pubco~~ (~~within the meaning of Rule 13d-5(b)(1~~d)(3) ~~under the Exchange Act). 2.1.16 The~~ is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ beneficial owner of ~~such~~ Subscriber’s ~~assets and the portfolio managers have no knowledge~~ securities for purposes of Rule 506(d) of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Hycroft Mining Holding Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming ~~that~~ this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, then this Subscription Agreement is the valid and binding obligation of ~~Subscriber and is~~ Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 If the Subscriber is a resident of Israel or an entity organized under the laws of the State of Israel, the Subscriber represents that it is qualified as a “Classified Investor” under the First Supplement of the Israeli Securities Law of 1968, as amended (the “Israeli Securities Law”), by complying with at least one of the items (1) – (11) under such First Supplement. Prior to the date hereof, such Subscriber represents it has informed the Company under which items it is qualified as a “Classified Investor”, and provided the Company with supplemental information necessary to establish such qualification. The Subscriber is aware of the implications of the status of being a Classified Investor specified in the First Supplement of the Israeli Securities Law and consents thereto. 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer~~’s and Pubco~~’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received access to~~ received, and has had an adequate opportunity to ~~review~~ review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares,~~ Shares (including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and~~ Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by the Company in the virtual dataroom to which Subscriber has been granted access. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber acknowledges that ▇. ▇▇▇▇▇ Securities, Inc. (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company and the Shares, and the offer and sale of the Shares, and (ii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change, and that any changes to such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from either the Placement Agent or the Issuer ~~or its representative. Subscriber has~~ as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with the Issuer or its ~~representative~~representatives (including the Placement Agent), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~ Placement Agent or ~~its representative~~the Issuer. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. ~~2.1.14~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire aERI

Appears in 1 contract

Sources: Subscription Agreement (Otonomo Technologies Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is an Institutional Account (as defined in FINRA Rule 4512(c)), (ii) is (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or (y) an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c)~~I, (iii) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional ~~buyer,~~ buyer and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iv) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a legend (or book entries with respect to the Shares shall contain a notation) to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands that each book-entry for the Shares shall contain a notation, and each certificate (if any) evidencing the Shares shall be stamped or otherwise imprinted with a legend, in substantially the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective agents, affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements made by the Issuer expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements other than those made by the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),~~ 2.1.8 Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to subscribe for and purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares, except, in the event that Subscriber is or was a stockholder of the Company as of the date hereof, for any information Subscriber has acquired in such capacity (but as to which information Subscriber acknowledges and agrees neither the Issuer, the Company nor any other Person acting on behalf of the Issuer or the Company makes or has made any representation or warranty of any kind whatsoever, including as to the accuracy or completeness thereof, and Subscriber hereby disclaims reliance, and hereby represents that it will not rely, on any actual or purported representation or warranty in respect of such information by the Issuer, the Company or any Person acting on behalf of the Issuer or the Company). Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. ~~2.1.9~~ 2.1.10 (i) Subscriber became aware of this offering of the Shares solely by means of direct contact between ~~Subscriber~~ Subscriber, on the one hand, and (a) J.▇. ▇▇▇▇▇▇ Securities LLC (“J.▇. ▇▇▇▇▇▇”) and Maxim Group LLC (“Maxim,” and each, a “Placement Agent”) or (b) the ~~Issuer or its representative.~~ Issuer, on the other hand, (ii) Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (~~as defined below~~the “Commission”) under the Securities Act) with such Placement Agent or the ~~Issuer~~ Issuer, as applicable, or its ~~representative~~representatives, and (iii) the Shares were offered to Subscriber solely by direct contact between Subscriber and such Placement Agent or the ~~Issuer or its representative~~Issuer, as applicable. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as Subscriber’s financial advisor or fiduciary. Subscriber acknowledges that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that Subscriber, alone~~2.1.12 Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. ~~2.1.14~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on~~ neither Issuer, the ~~Issuer or Pubco or~~ Company, nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Shares. ~~2.1.15~~ 2.1.16 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.17 Subscriber ~~hereby acknowledges~~ will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1 at the Closing. 2.1.18 No disclosure or offering document has been prepared by the Placement Agents in connection with the offer and ~~agrees that it will not~~sale of the Shares. Each Placement Agent and each of its directors, ~~nor will~~ officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any ~~person acting at~~ information supplied to the Subscriber or by the Issuer or the Company. In connection with the issuance and purchase of the Shares, the Placement Agents have not acted in any capacity on the Subscriber’s ~~direction or pursuant to any understanding with~~ behalf, including without limitation as the Subscriber~~, directly~~ ’s financial advisor or ~~indirectly offer, sell, pledge, contract~~ fiduciary. Subscriber acknowledges that the Placement Agents shall have no liability or obligation to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber ~~that have no knowledge~~ in respect of this Subscription Agreement or the transactions contemplated hereby. 2.1.19 Subscriber acknowledges and agrees that (a) each of JPM and Maxim is acting solely as the Issuer’s placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the Subscriber~~’s participation~~ , the Issuer or any other person or entity in connection with the ~~subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales~~Transactions, (b) each of JPM and Maxim has not made and will not make any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the ~~case~~ Transactions, (c) each of ~~a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets~~ JPM and ~~the portfolio managers~~ Maxim will have no ~~knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply~~ responsibility with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) ~~acquired~~ any representations, warranties or agreements made by ~~Subscriber prior to~~ any person or entity under or in connection with the ~~date hereof~~ Transactions or ~~(ii) acquired by~~ any of the ~~Subscriber after~~ documents furnished pursuant thereto or in connection therewith, or the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire ae

Appears in 1 contract

Sources: Subscription Agreement (Growth Capital Acquisition Corp.)

Appears in 1 contract

Sources: Subscription Agreement (Binah Capital Group, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation by Subscriber of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries and (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act~~) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c~~), (iii) is acquiring the Shares only for its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless Subscriber is a newly formed entity in which all of the equity owners are accredited investors, and is an “institutional account” as defined by FINRA Rule 4512(e). Accordingly, Subscriber is aware that this offering of the Subscribed Shares meets the exemption from filing under FINRA Rule 5123B(1)(A), (C) or (J). ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act and that the Issuer will not be required to register the Subscribed Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act (including without limitation a private resale pursuant to so called “Section 4(a)1½”), and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Subscribed Shares shall contain a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares is a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the Company, ~~the Placement Agents (as defined below)~~ or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ 2.1.7. Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including ▇.▇. ▇▇▇▇▇▇ Securities LLC and Deutsche Bank Securities Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and its respective representatives concerning the ~~Issuer or Pubco~~ Issuer, the Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, the Company or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the Company or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer will represent and warrant that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any applicable state securities laws. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.11. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco or~~ Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming~~) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”~~), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Sports Ventures Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Common Shares and Series A Warrants to the Subscriber, the Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ The Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual, this~~ This Subscription Agreement ~~has~~ and the Series A Warrants (collectively, the “Transaction Documents”) have been duly authorized, ~~validly~~ executed and delivered by the Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement Each of the ~~Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ Transaction Documents is enforceable against the Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by the Subscriber of ~~this Subscription Agreement~~ each of the Transaction Documents and the consummation of the transactions contemplated ~~herein do not and~~ in the Transaction Documents will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of the Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which the Subscriber is a ~~party,~~ party or by which the Subscriber is bound or to which any of the property or assets of the Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of the Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of the Subscriber to ~~enter into and timely perform its obligations under this Subscription Agreement,~~ comply in all material respects with the terms of the Transaction Documents; (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber~~ the Subscriber; or (~~iii~~c) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Subscriber or any of its ~~properties, which would, in each case,~~ properties that would reasonably be expected to have a the Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of the Subscriber to ~~enter into and timely perform its obligations under this Subscription Agreement~~comply in all material respects with the Transaction Documents. 2.1.4 The Subscriber (ia) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on in Schedule ~~I attached hereto~~A, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the ~~Shares~~ Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if the Subscriber is subscribing for the ~~Shares~~ Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (ivc) is not acquiring the ~~Shares~~ Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). The Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Securities. 2.1.5 The Subscriber understands that the ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Securities have not been registered under the Securities Act. The Subscriber understands that the ~~Shares~~ Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by the Subscriber, any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner (each “Subscriber Affiliate”) absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under~~ the Securities ~~Act,~~ or ~~(iii) pursuant~~ an opinion of counsel satisfactory to ~~another~~ the Company that such registration statement is not required and an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the ~~Shares~~ Securities shall contain a legend to such effect. The Subscriber acknowledges that the ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. The Subscriber understands and agrees that the Securities will be subject to transfer restrictions and, as a result of these transfer restrictions, the ~~transfer restrictions described herein,~~ Subscriber may not be able to readily resell the ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Securities for an indefinite period of time. The Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Securities. 2.1.6 The Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that ~~there have been~~ no representations, warranties, ~~covenants, or~~ covenants and agreements are being made to the Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective~~ its officers, affiliates, ~~officers~~ directors, agents or ~~directors~~advisors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ included in ~~this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~the Transaction Documents. 2.1.7 If The Subscriber represents and warrants that (a) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as ~~amended~~ amended, or (~~“ERISA”), Subscriber represents and warrants that~~ b) its acquisition and holding of the ~~Shares~~ Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Securities, the Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ the ~~Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, ~~receive~~ and has received such ~~answers,~~ answers and ~~obtain~~ obtained such information regarding the Company as the Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary and adequate to make an investment decision with respect to the ~~Shares~~Securities. 2.1.9 The Subscriber became aware of this offering of the ~~Shares~~ Securities solely ~~by means~~ and directly from the Company as a result of ~~direct contact between Subscriber and the Issuer or its representative. Subscriber has~~ a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the ~~Shares~~ Securities were offered to the Subscriber solely by direct contact between the Subscriber and the ~~Issuer or its representative~~Company. The Subscriber did not become aware of this offering of the ~~Shares~~Securities, nor were the ~~Shares~~ Securities offered to the Subscriber, by any other means. The Subscriber acknowledges that the ~~Shares~~ Company has not acted as its financial advisor, agent or fiduciary. The Subscriber acknowledges that the Company represents and warrants that the Securities (ia) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (iib) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 The Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Securities. The Subscriber 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~~Securities, and the Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as the Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 The Subscriber represents and acknowledges that ~~Subscriber~~the Subscriber has such knowledge and experience in financial, ~~alone, or together with any professional advisor(s), if any~~investment and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Securities and determined that the Securities are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Subscriber’s investment in ~~Pubco~~the Company. The Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 The Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 The Subscriber represents and warrants that neither the Subscriber, nor any director or officer of the Subscriber, nor to the knowledge of the Subscriber, any employee, agent, affiliate or representative of the Subscriber or any director or officer of any of its subsidiaries is ~~not~~ (ia) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity that is the subject of any sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities (“Sanctions”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (ivb) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (vc) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank, or (d) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea region of the Ukraine, Russia, Cuba, Iran, North Korea, Sudan and Syria). The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Subscriber is permitted to do so under applicable law. The Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ the Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Subscriber also represents that~~, to the extent required~~, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against Sanctions and the OFAC sanctions programs, including the OFAC ~~Lists~~List. The Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Common Shares were legally derived. 2.1.14 If The Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient available funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section ~~4975~~ 3.1. 2.1.15 The Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to the Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. The Subscriber hereby agrees that it shall notify the ~~Code~~ Company promptly in writing in the event a Disqualification Event becomes applicable to the Subscriber or ~~an employee benefit plan~~ any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or direct beneficial owner of the Subscriber’s ~~participation in~~ securities for purposes of Rule 506(d) under the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Innventure, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein do not and~~ hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a~~ materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any ~~statute~~ law or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case, reasonably be expected to have a~~ subsidiaries or any of their respective properties that would materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached~~ A hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of any such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber (other than to the Company or any investment fund or managed account managed by the same investment adviser as Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each, a “Subscriber Affiliate”)), absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel reasonably satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber ~~understands~~ acknowledges that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ~~the Issuer, Pubco,~~ or on behalf of the Company, ~~the Placement Agents (as defined below)~~ QualTek or their respective affiliates or any of their respective ~~affiliates~~subsidiaries, ~~officers~~ control persons, officers, directors, employees, partners, agents or ~~directors~~representatives or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth~~ of the Company included in this Subscription Agreement. Subscriber hereby expressly and irrevocably acknowledges and agrees that, ~~and Subscriber is~~ with respect to the transactions contemplated hereby, he, she or it has not ~~relying~~ relied on any other representations, ~~warranties~~ warranties, covenants, agreements or ~~covenants~~ statements (including by omission) and all other ~~than those expressly set forth in this Subscription Agreement~~purported representations, warranties, covenants, agreements or statements (including by omission) are hereby disclaimed by Subscriber with respect to the transactions contemplated hereby. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and upon the ~~Issuer’s~~ representations and ~~Pubco’s representations,~~ warranties ~~and agreements in Section 2.2 hereof. Without limiting the generality~~ of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany made in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions~~ Shares and has made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the Company. Subscriber represents and ~~agrees~~ warrants that Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information regarding the Company, QualTek and the Transactions, as Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that no disclosure or any information received by Subscriber has been prepared by any of ▇▇▇▇ Capital Partners, LLC or ▇▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Company. Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. 2.1.9 Subscriber became aware of this offering of the Shares solely (i) by means of direct contact ~~between Subscriber and~~ from one or both of the ~~Issuer~~ Placement Agents or ~~its representative. Subscriber has~~ (ii) directly from the Company as a result of a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Shares (iA) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (iiB) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated hereby. 2.1.12 Subscriber understands and ~~agrees~~ acknowledges that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”~~) or~~ ), in any ~~other~~ Executive Order issued by the President of the United States and administered by ~~OFAC~~ OFAC, or in any other list of prohibited or restricted parties promulgated by OFAC, the Department of Commerce, or the Department of State (~~collectively,~~ “~~OFAC~~ Sanctions Lists”), or a person or entity prohibited by or restricted under any OFAC sanctions program, (ii) ~~owned~~ greater than 50% owned, directly or indirectly, or controlled by, or acting on behalf of, ~~a person,~~ one or more persons that is are named on ~~an OFAC~~ any Sanctions List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Myanmar, Venezuela, Syria, the Crimea region of ~~Ukraine,~~ Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a “Designated ~~National~~ National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents ~~that, to the extent required,~~ that it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ Sanctions Lists. Subscriber further represents and warrants ~~that, to the extent required,~~ that it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally ~~derived~~derived and were not obtained, directly or indirectly, from a Prohibited Investor. 2.1.14 If Subscriber is ~~an employee benefit plan that is subject to Title I of ERISA~~not a “foreign person,” “foreign government,” or a “foreign entity,” in each case, ~~a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (~~as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 721 of the ~~Code~~Defense Production Act of 1950, ~~Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates~~ as amended, including, without limitation, all implementing regulations thereof (the “~~Transaction Parties~~DPA”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision)~~, and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15~~ . Subscriber is not ~~currently (and at all times through Closing will refrain from being~~ controlled, in whole or ~~becoming) a member of~~ in part, by a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short salesforeign person,” as defined in ~~Rule 200 of Regulation SHO under~~ the ~~Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms)~~DPA. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire asubstantial interest in the Company as a result of the sale of securities to Subscriber such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of securities hereunder. 2.1.15 Subscriber will have sufficient available funds at the Closing to pay the Purchase Price pursuant to Section 3.1. 2.1.16 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. 2.1.17 Subscriber acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. 2.1.18 Subscriber acknowledges that the Placement Agents (i) have not provided Subscriber with any information or advice with respect to the Shares, (ii) have not made any representation or warranty, express or implied as to the Company, QualTek, their credit quality, the Shares, the Transactions or the transactions contemplated hereby, or Subscriber’s purchase of the Shares, (iii) have not acted as Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Shares

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition III Co)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~ii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses (i~~cases ‎(i) and ~~(iii~~‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco~~23andMe, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco, the Company,~~ 23andMe and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and 23andMe including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer. ~~2.1.9~~ 2.1.9. Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, 23andMe or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. Subscriber further acknowledges that Citigroup Global Markets Inc. is acting as financial advisor to 23andMe in connection with the Transactions. Issuer and 23andMe are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. 2.1.10. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.11. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.15. Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.16. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 Subscriber will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.17. No broker, finder or other financial consultant has acted on behalf of Su

Appears in 1 contract

Sources: Subscription Agreement (VG Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any ~~court or governmental agency or body, domestic or foreign,~~ Governmental Authority having jurisdiction over Subscriber or, if applicable, any of its subsidiaries or any of ~~its properties, which would, in each case,~~ their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber Material Adverse Effect. 1 Note to ~~enter into and timely perform its obligations under~~ Draft: Bracketed text in this Section 1 to be included in Sponsor Subscription ~~Agreement~~Agreement only. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an ~~institutional~~ “accredited investor” (within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3), (5), (6) or (7) under the Securities Act) satisfying the applicable requirements set forth on Schedule I ~~attached~~ hereto, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the Shares~~. 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect~~. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act~~. Subscriber understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC or Blackstone Securities Partners L.P. (collectively, the “Placement Agents”), the Issuer, ~~Pubco~~Altus, ~~the Company, the Placement Agents (as defined below)~~ or any of their respective ~~affiliates~~affiliates or any control persons, ~~officers~~ officers, directors, partners, agents or ~~directors~~representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement,~~ made by the Issuer and ~~Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 ~~If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its~~ Subscriber’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a violation of any applicable ~~similar law~~Similar Law (as defined below). 2.1.8 In making its decision to purchase the Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer ~~or Pubco~~ or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to to, and has had an adequate opportunity to ~~review~~ review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ~~Pubco,~~ Altus and the ~~Company~~Transactions, and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has received access to, and has had an adequate opportunity to review (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (ii) a presentation with respect to Altus provided to Subscriber by the Issuer (the “Target Disclosure”). Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber further acknowledges that any information contained in Target Disclosure is preliminary and subject to change, and that any changes to the information contained in the Target Disclosure, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Shares hereunder, except as otherwise provided herein. None of the Placement Agents or any of their respective affiliates has made or makes any representation as to the Issuer, Altus or the quality or value of the Shares, and the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Issuer or Altus which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber, none of the Placement Agents or any of their respective affiliates has acted or shall be construed to have acted as a financial advisor or fiduciary to Subscriber. Subscriber agrees that (a) none of the Placement Agents will have any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with this offering or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, Altus or the offering, and (b) no Placement Agent shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the offering. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its ~~representative~~representatives. ~~Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the~~ The Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its ~~representative~~representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber (i) if not an individual, is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. If the Subscriber is not an individual, Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of an investment in the Shares. 2.1.13 ~~Subscriber represents and warrants that~~ Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, ~~of, Cuba, Iran, North Korea, Syria, the Crimea region~~ of ~~Ukraine, or~~ any ~~other~~ country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable laws. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it Subscriber maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber is (i) an “employee benefit ~~plan~~ plan” within the meaning of Section 3(3) of ERISA that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the ~~Code or~~ Code, (iii) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), ) or other plan that is not subject to Title I of ERISA or Section 4975 of the ~~foregoing~~ Code but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or (iii) an entity whose underlying assets are considered to include “plan assets” of any ~~such plan~~of the foregoing described in clauses (i), ~~account, or arrangement~~ (~~each, a “Plan”~~ii) and (iii) subject to the fiduciary or prohibited transaction provisions of ~~ERISA or~~ ERISA, Section 4975 of the ~~Code~~Code or Similar Laws (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~(i)~~ it has not relied on the Issuer or ~~Pubco or~~ any of ~~their respective~~ its affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (CBRE Acquisition Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the Issuer ~~and Pubco, as of the date hereof and as of the Closing,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Shares and the Warrants only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares or the Warrants as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iviii) is not acquiring the Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Shares or the Warrants. 2.1.5 Subscriber understands that the Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares and the Warrants have not been registered under the Securities Act. Subscriber understands that the Shares and the Warrants may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses~~ cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Shares or the Warrants shall contain a legend to such effect. Subscriber acknowledges that the Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares or the Warrants will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares or the Warrants and may be required to bear the financial risk of an investment in the Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Shares or the Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares and the Warrants directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their~~ its respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Shares and the Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Shares and the Warrants or the offer and sale of the ~~Shares~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares~~Shares and the Warrants, including with respect to the Issuer, ~~Pubco~~Holdings, ~~the Company,~~ Music and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Shares~~Shares and the Warrants. 2.1.9 Subscriber became aware of this offering of the Shares and the Warrants solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission ~~(as defined below)~~ under the Securities Act) with the Issuer or its representative, and the Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representative. Subscriber did not become aware of this offering of the ~~Shares~~Shares and the Warrants, nor were the Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares and the Warrants (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Shares and the Warrants. Subscriber 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~~Shares and the Warrants, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any,~~ Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and the Warrants and determined that the Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or the Warrants or made any findings or determination as to the fairness of an investment in the ~~Shares~~Shares or the Warrants. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under the laws of The Kingdom of Saudi Arabia; provided, further that Subscriber shall not, except as reasonably required to establish the escrow account established pursuant to Section 3.1 and, for as long as Subscriber elects to pursue such filing with a Governmental Authority, as required in connection with any filing with a Governmental Authority as contemplated by the Investor Rights Agreement referred to in Section 2.1.15, be required to provide any personally identifiable information, including with respect to any employees, directors, managers or affiliates of Subscriber. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares and the Warrants were legally derived. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-~~U.S.,~~ U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~Code~~Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or ~~Section~~ section 4975 of the Code, Subscriber represents and warrants that ~~(i) it has not relied on the Issuer or Pubco or~~ neither Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares (and ~~acknowledges that~~ the Warrants, and none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the ~~Shares~~Shares and the Warrants. 2.1.15 Except (i) as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the Issuer’s common stock prior to the date hereof and (ii) as a result of the entry into this Agreement and the Investor Rights Agreement, dated as of the date hereof, among Subscriber, Issuer and the other parties thereto, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 ~~The~~ Subscriber ~~hereby acknowledges and agrees that it~~ will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of Shares and the Warrants hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 will ~~acquire a~~have, sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 and was not formed for the purpose of acquiring the Shares and Warrants. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, charge, or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license, or other agreement or instrument to which Subscriber is a party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~ii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its properties, which would, in each case,~~ that would reasonably be expected to have a ~~materially~~ material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, (ii) ~~is an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the Subscribed Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of ~~clauses (i~~cases ‎(i) and ~~(iii~~‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any certificates or book entries representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Issuer or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. ~~2.1.7~~ 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer ~~or Pubco~~ and its representatives concerning the Issuer or ~~Pubco or~~ the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws~~Act. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ neither the Issuer ~~or Pubco or~~ nor any of ~~their respective~~ its affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding,~~ holding or disposing of equity securities of ~~Pubco~~ the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.16 The~~ 2.1.14. Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not ~~intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No~~ a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire aa substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Issuer to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~Pubco and~~ acknowledges and agrees with the ~~Issuer and Pubco~~Issuer, as of the date hereof and as of the ~~Closing~~Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer and Pubco~~other parties hereto, this Subscription Agreement is the valid and binding obligation of ~~Subscriber and~~ Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation by Subscriber of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries and (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act~~) satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c~~), (iii) is acquiring the Shares only for its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, ~~warranties,~~ warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iviii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless Subscriber is a newly formed entity in which all of the equity owners are accredited investors, and is an “institutional account” as defined by FINRA Rule 4512(e). Accordingly, Subscriber is aware that this offering of the Subscribed Shares meets the exemption from filing under FINRA Rule 5123B(1)(A), (C) or (J). ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act and that the Issuer is not and will not be required to register the Subscribed Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands that the Subscribed Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~Pubco~~ the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act~~Act (including without limitation a private resale pursuant to so called “Section 4(a)1½”), and in each ~~of clauses (i) and (iii)~~case, in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates ~~or book entries~~ representing the Subscribed Shares shall contain a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares is a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the Issuer, ~~Pubco,~~ the ~~Company, the Placement Agents (as defined below)~~ Company or any of their respective ~~affiliates,~~ officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 If~~ 2.1.7. Subscriber ~~is an employee benefit plan~~ represents and warrants that ~~is subject to Title I~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements~~ covenants of the Issuer contained in ~~Section 2.2 hereof~~this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including ▇.▇. ▇▇▇▇▇▇ Securities LLC and Deutsche Bank Securities Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer ~~or Pubco~~ and its respective representatives concerning the ~~Issuer or Pubco~~ Issuer, the Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~access to and has had an adequate opportunity to review~~ such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, ~~Pubco,~~ the ~~Company,~~ Company and the ~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares~~Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. ~~2.1.9~~ 2.1.9. Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, the Company or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer~~ Issuer, the Company or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer will represent and warrant that the Subscribed Shares (i) were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any applicable state securities laws. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares~~2.1.11. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber ~~represents~~ agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that ~~if it~~ Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.14~~ 2.1.13. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to ~~Section~~ section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in ~~Section~~ section 3(32) of ERISA), a church plan (as defined in ~~Section~~ section 3(33) of ERISA), a non-U.S. plan (as described in ~~Section~~ section 4(b)(4) of ERISA), ) or other plan that is not subject to the foregoing but may be subject to provisions under any other ~~federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code,~~ Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, ~~account,~~ account or arrangement (each, a “Plan”~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code~~), Subscriber represents and warrants that ~~(i) it has not relied on~~ none of the ~~Issuer or Pubco or~~ Issuer, nor any of ~~their~~ its respective affiliates (the “Transaction Parties”) has acted as the Plan’s ~~fiduciary~~ fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~Shares (~~Subscribed Shares, and ~~acknowledges that~~ none of the Transaction Parties ~~have not acted~~ shall at any time be relied upon as the Plan’s fiduciary ~~with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties~~ with respect to any decision to acquire, continue to ~~hold,~~ hold or transfer the Subscribed Shares. ~~2.1.15~~ 2.1.14. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Sports Ventures Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer and Pubco~~ Company and acknowledges and agrees with the ~~Issuer and Pubco~~Company, as of the date hereof and as of the ~~Closing~~Subscription Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 3.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. ~~2.1.2 If Subscriber is not an individual, this~~ 3.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same.~~ Assuming that this Subscription Agreement constitutes the valid and binding agreement of the ~~Issuer~~ Company and ~~Pubco~~the Sponsor, this Subscription Agreement is the valid and binding obligation of ~~Subscriber~~ Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3~~ 3.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), the issuance by the Company of the Subscribed Shares to Subscriber and the consummation of the transactions contemplated herein do not and will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a ~~party,~~ party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ legal authority of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement~~Agreement (a “Subscriber Material Adverse Effect”), (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (~~iii~~c) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties~~subsidiaries, ~~which would~~as applicable, ~~in each case,~~ or any of their respective properties that would reasonably be expected to have a ~~materially adverse effect on the ability of~~ Subscriber ~~to enter into and timely perform its obligations under this Subscription Agreement~~Material Adverse Effect. ~~2.1.4~~ 3.1.4. Subscriber (a) is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an ~~institutional~~ “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule ~~501(a) (1~~501(a)(1), (2), (3) or (7) under the Securities ~~Act~~Act (“Accredited Investor”), (ii) an Institutional Account as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”) and (iii) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~I, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB or an Accredited Investor who is investing in the Subscribed Shares, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the Subscribed Shares only for its own ~~account~~ or for ~~beneficiaries’ portfolio under~~ its ~~management~~ controlled affiliate(s)’s account(s) and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties, and agreements herein on behalf of each owner of each such accountany other third party, and (ivc) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I ~~attached~~ following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Subscribed Shares. Accordingly, Subscriber understands that the offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 3.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that the Subscribed Shares may not be offered, sold, resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (ia) to ~~Pubco~~ the Company or a subsidiary thereof, (iib) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities ~~Act,~~ Act or (~~iii~~c) pursuant to another applicable exemption ~~from~~ from, or in a transaction not subject to, the registration requirements of the Securities Act, and in each ~~of clauses (i) and (iii)~~case, in accordance with any other applicable securities ~~laws of the states and other jurisdictions of the United States~~laws, and that ~~any certificates~~ the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act, are subject to restrictions on transferability and resale and may not be transferred or ~~book entries representing~~ resold except as permitted under the ~~Shares~~ Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom and (ii) shall ~~contain~~ be subject to a legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~result of the transfer restrictions described herein~~result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 3.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants,~~ covenants or agreements made to Subscriber by the ~~Issuer, Pubco, the~~ Company, the ~~Placement Agents (as defined below)~~ Sponsor or any of their respective affiliates, ~~officers~~ or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares3.1.7. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such ~~questions~~questions of the Company, receive such answers, including on the financial information, and obtain such information directly as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares and Subscriber has independently made its own analysis and decision to invest in the Subscribed Shares. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Subscription Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company and its subsidiaries including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Subscribed Shares. ~~2.1.9~~ 3.1.8. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between ~~Subscriber and~~ Subscriber, the ~~Issuer~~ Sponsor, the Company or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the Issuer or its representative, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its representativeone of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares ~~(i)~~ were not offered ~~to Subscriber~~ by any form of ~~advertising or, to its knowledge,~~ general ~~solicitation~~solicitation or general advertising, including methods described in ~~Section~~ section 502(c) of Regulation D under the Securities ~~Act~~ Act, and ~~(ii)~~ are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities ~~laws~~law. ~~2.1.10~~ 3.1.9. Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription and ownership of the ~~Shares~~Subscribed Shares and is able to fend for itself in the transactions contemplated herein. Subscriber 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 Subscribed Shares, and Subscriber has been offered the opportunity to ask questions of the Company and received answers thereto, including on the financial information, as Subscriber deemed necessary in connection with its decision to purchase the Subscribed 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 Subscribed Shares. Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber ~~understands and~~ acknowledges that ~~the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11~~ Subscriber ~~represents and acknowledges that Subscriber, alone, or together with~~ shall be responsible for any ~~professional advisor(s), if any, has adequately analyzed and considered the risks of an investment in the Shares and that Subscriber is able to bear the economic risk of a total loss~~ of Subscriber’s ~~investment in Pubco. Subscriber acknowledges specifically~~ tax liabilities that may arise as a ~~possibility~~ result of ~~total loss exists~~the transactions contemplated by this Subscription Agreement, and that neither the Company, nor any of its agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. ~~2.1.12~~ 3.1.10. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the ~~Shares~~Subscribed Shares and the foregoing authorities have not confirmed the accuracy or determined the adequacy of any representation (and any representation to the contrary is a criminal offense). ~~2.1.13~~ 3.1.11. Subscriber represents and warrants that none of Subscriber nor, to Subscriber’s knowledge, any of its officers or directors is ~~not~~ (ia) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC or any similar list of sanctioned persons administered by the United Nations, the United Kingdom, the European Union or any individual European Union member state (collectively, “~~OFAC~~ Sanctions Lists”)) or a person or entity that is otherwise the target of any OFAC sanctions program, (iib) directly or indirectly owned (50% or more) or controlled by, or acting on behalf of, one or more persons on a ~~person, that is named on an OFAC~~ Sanctions List, ; (~~iii~~c) organized, incorporated, established, located, or resident ~~or born~~ in, or ~~a citizen, national, or~~ the ~~government,~~ government of (including any political subdivision, agency, or instrumentality thereof~~, of,~~ ) any country or territory that is the target of comprehensive sanctions (currently Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, ~~or any other country or territory embargoed or subject to substantial trade restrictions by~~ the ~~United States~~so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic); (ivd) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (ve) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations bank (collectively, ~~the~~ a “~~BSA/PATRIOT Act~~Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber ~~maintains policies and procedures reasonably designed~~ is permitted to ~~comply with~~ do so under applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derivedlaw. ~~2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA~~3.1.12. No broker, ~~a plan, an individual retirement account~~ finder or other ~~arrangement that is subject to Section 4975~~ financial consultant has acted on behalf of ~~the Code or an employee benefit plan that is a governmental plan (as defined~~ Subscriber in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary connection with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the ~~Subscriber’s participation~~ transactions contemplated hereby in such a way as to create any liability on the ~~subscription (including the Subscriber’s controlled affiliates and/or~~ Company or its affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Backstop Subscription Agreement (VinFast Auto Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii~~) is an institutional account as defined in FINRA Rule 4512(c), (iii~~) is acquiring the Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof~~Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and ~~such~~ the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of R▇▇▇ Capital Partners, LLC or C▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agents or ~~its representative. Subscriber has~~ directly from the Company as a result of a pre-~~existing substantive~~ exiting, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents or ~~its representative~~the Company. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that Subscriber, alone~~Alone, or together with any professional advisor(s), ~~if any~~Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act~~Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below)~~. 2.1.16 The~~ , except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ direct beneficial owner of ~~such~~ Subscriber’s ~~assets and~~ securities for purposes of Rule 506(d) under the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Mountain Crest Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the ~~Shares~~ Purchased Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, ~~validly~~ executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~Assuming that this~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the ~~consummation~~ purchase by Subscriber of the ~~transactions contemplated herein do not and~~ Purchased Securities will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber or any of its subsidiaries is a ~~party,~~ party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which ~~would, in each case,~~ would reasonably be expected to ~~have a materially adverse effect on the ability~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ any of its material obligations under this Subscription ~~Agreement,~~ Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) subject to receipt of required regulatory approvals, if any, result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a~~) (1), (2), (3) or (7~~) under the Securities Act) satisfying the applicable requirements set forth on Schedule ~~I attached hereto~~A, (ii) is ~~an institutional account as defined in FINRA Rule 4512(c), (iii) is~~ acquiring the ~~Shares~~ Purchased Securities only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the ~~Shares~~ Purchased Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (iviii) is not acquiring the ~~Shares~~ Purchased Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Shares~~Purchased Securities. Subscriber understands and acknowledges that the purchase of the Purchased Securities pursuant to this Agreement meets an exemption from filing under FINRA Rule 5123. 2.1.5 Subscriber understands that the ~~Shares~~ Purchased Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Shares~~ Purchased Securities have not been registered under the Securities Act. Subscriber understands that the ~~Shares~~ Purchased Securities may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Purchased Securities or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the ~~Shares~~ Purchased Securities shall contain a legend to such effect. Subscriber acknowledges that the ~~Shares~~ Purchased Securities will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act.~~ Act (“Rule 144”) until at least one year from the filing by the Company of the “Form 10 information.” Subscriber understands and agrees that the Purchased Securities will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the ~~Shares~~ Purchased Securities and may be required to bear the financial risk of an investment in the ~~Shares~~ Purchased Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the ~~Shares~~Purchased Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Shares~~ Purchased Securities directly from ~~Pubco~~the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants, or~~ covenants and agreements made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective affiliates,~~ its officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (i) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Subscriber represents and warrants that~~ or (ii) its acquisition and holding of the ~~Shares~~ Purchased Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Shares~~Purchased Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~Issuer’s and Pubco’s~~ representations, warranties and ~~agreements in Section 2.2 hereof. Without limiting the generality~~ covenants of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesCompany contained in this Subscription Agreement. The Subscriber acknowledges and agrees that the Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Purchased Securities and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Shares~~Purchased Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such ~~answers,~~ answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary for the Subscriber to make an investment decision with respect to the ~~Shares~~Purchased Securities. The Subscriber acknowledges that it has not relied on any statements or other information provided by ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPM”) and Global Leisure Partners LLC (“GLP” and, together with JPM, the “Placement Agents”) or any of the Placement Agents’ affiliates with respect to its decision to invest in the Purchased Securities, including information related to the Company, the Purchased Securities and the offer and sale of the Purchased Securities. 2.1.9 Subscriber became aware of this offering of the ~~Shares solely~~ Purchased Securities by means of direct contact ~~between Subscriber and~~ from the ~~Issuer~~ Placement Agents in the case of institutional accredited investors, and/or directly from the Company or ~~its representative. Subscriber has~~ ▇▇▇▇▇▇▇ Group as a result of a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer~~ Company or ~~its representative~~▇▇▇▇▇▇▇ Group, and the ~~Shares~~ Purchased Securities were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~ Placement Agents, the Company or ~~its representative~~▇▇▇▇▇▇▇ Group. Subscriber did not become aware of this offering of the ~~Shares~~Purchased Securities, nor were the ~~Shares~~ Purchased Securities offered to Subscriber, by any other means. Subscriber acknowledges that (a) the ~~Shares~~ Placement Agents have not acted as its financial advisor or fiduciary, (b) each of the Placement Agents is acting solely as placement agent to the Company and is not acting as an underwriter or in any other capacity or as a fiduciary for the Company, ▇▇▇▇▇▇▇ Group or any other person or entity in connection with the Transaction and (c) none of the Placement Agents or any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Purchased Securities. Subscriber acknowledges that the Company represents and warrants that the Purchased Securities (i) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any state securities laws. 2.1.10 Subscriber acknowledges and agrees that (a) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transaction, (b) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company, ▇▇▇▇▇▇▇ Group or the Transaction, and (c) the Placement Agents will have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transaction. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Shares~~Purchased Securities. Subscriber 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~~Purchased Securities, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. ~~The~~ Subscriber understands and acknowledges that the purchase and sale of the ~~Shares~~ Purchased Securities hereunder meets (i) the exemptions from filing under FINRA Rule ~~5123(b)(1)(A) and~~ 5123, (ii) the institutional customer exemption under FINRA Rule 2111(b) and (iii) the institutional account exemption under FINRA Rule 4512(c). ~~2.1.11~~ 2.1.12 Subscriber represents and acknowledges that ~~Subscriber, alone, or together with any professional advisor(s), if any~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Purchased Securities, has adequately analyzed and fully considered the risks of an investment in the ~~Shares~~ Purchased Securities and determined that the Purchased Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated herein. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Shares~~ Purchased Securities or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Shares~~ Purchased Securities were legally derived. ~~2.1.14 If~~ 2.1.15 Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section ~~4975~~ 3.1. 2.1.16 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of ~~the Code~~ its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~an employee benefit plan~~ (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~governmental plan (as defined in Section 3(32~~direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~of ERISA)~~under the Securities Act. 2.1.17 [Reserved]. 2.1.18 Subscriber acknowledges and understands that, ~~a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that~~ if it is not ~~subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or~~ an ~~entity whose underlying assets are considered to include~~ institutional “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “groupaccredited investor” (within the meaning of ~~Section 13(d)(3~~Rule 501(a)(1), (2), (3), (7) (8), (9), (12) or ~~Section 14(d)(2) of the Securities Exchange Act of 1934, as amended~~ (~~the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of Rule 13d-5(b)(1~~13) under the ~~Exchange~~ Securities Act)~~. 2.1.16 The Subscriber hereby acknowledges and agrees that it will not~~, ~~nor will any person~~ only GLP is acting at as the ~~Subscriber~~Company’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply Placement Agent with respect to ~~the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement~~ such offers and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreementsales. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (Aldel Financial Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~Pubco~~ the Company to issue the Common Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and Pubco and acknowledges~~ Company and agrees with the ~~Issuer and Pubco, as of the date hereof and as of the Closing,~~ Company as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver,~~ deliver and perform its obligations under this Subscription Agreement. 2.1.2 ~~If Subscriber is not an individual~~This Subscription Agreement, ~~this Subscription Agreement~~ has been duly authorized, ~~validly~~ executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium,~~ moratorium or other laws relating to or affecting the rights of creditors ~~generally~~ generally, and (iib) principles of equity, whether considered at law or equity. 2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein do not and~~ in this Subscription Agreement will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default ~~or waiver~~ under, or result in the creation or imposition of any lien, ~~charge,~~ charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license,~~ license or other agreement or instrument to which Subscriber is a ~~party,~~ party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would, in each case,~~ would reasonably be expected to have a ~~materially~~ material adverse effect on the ~~ability~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with the terms of this Subscription Agreement, ; (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber~~ Subscriber; or (~~iii~~c) result in any violation of any statute or any judgment, order, ~~rule,~~ rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~properties, which would, in each case,~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially ~~adverse effect on~~ affect the ~~ability~~ legal authority of Subscriber to ~~enter into and timely perform its obligations under~~ comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (ia) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or and an ~~institutional~~ “accredited investor” (within the meaning of Rule 501(a) ~~(1), (2), (3) or (7)~~ under the Securities Act) satisfying the applicable requirements set forth on in Schedule ~~I attached hereto~~A, (~~ii) is an institutional account as defined in FINRA Rule 4512(c), (iii~~b) is acquiring the Common Shares only for its own account ~~or for beneficiaries’ portfolio under its management~~ and not for the account of others, or if Subscriber is subscribing for the Common Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is ~~a qualified institutional buyer,~~ an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations, warranties,~~ representations and agreements herein on behalf of each owner of each such account, and (ivc) is not acquiring the Common Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule ~~I attached~~ A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Common Shares. 2.1.5 Subscriber understands that the Common Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Common Shares have not been registered under the Securities Act. Subscriber understands that the Common Shares may not be resold, transferred, ~~pledged,~~ pledged or otherwise disposed of by Subscriber, any investment fund or managed account managed by the same investment adviser as Subscriber or having the same general partner or an affiliated general partner (each “Subscriber Affiliate”) absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to ~~Pubco~~ the Common Shares or ~~a subsidiary thereof, (ii)~~ an opinion of counsel satisfactory to ~~non-U.S. persons pursuant to offers~~ the Company that such registration statement is not required and ~~sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities ~~Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States~~Act is available, and that any certificates or book entries representing the Common Shares shall contain a legend to such effect. Subscriber acknowledges that the Common Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Common Shares will be subject to transfer restrictions and, as a result of ~~the~~ these transfer ~~restrictions described herein~~restrictions, Subscriber may not be able to readily resell the Common Shares and may be required to bear the financial risk of an investment in the Common Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, ~~pledge,~~ pledge or transfer of any of the Common Shares. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Shares directly from Pubco. Subscriber further~~ acknowledges that ~~there have been~~ no representations, warranties, ~~covenants, or~~ covenants and agreements are being made to Subscriber by the ~~Issuer, Pubco, the Company, the Placement Agents (as defined below)~~ Company or any of ~~their respective~~ its officers, affiliates, ~~officers or~~ directors, agents or advisors expressly or by implication, other than those representations, warranties, ~~covenants,~~ covenants and agreements ~~expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ included in this Subscription Agreement. 2.1.7 If Subscriber represents and warrants that (a) it is ~~an employee benefit plan that is subject to Title I of~~ not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as ~~amended~~ amended, or (~~“ERISA”), Subscriber represents and warrants that~~ b) its acquisition and holding of the Common Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Common Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, warranties and agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received ~~access to~~ and has had an adequate opportunity to ~~review~~ review, and ask questions with respect to, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Shares, including with respect to the Issuer, Pubco, the Company,~~ Common Shares and ~~the Transactions and has~~ made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to ~~the~~ Subscriber’s investment in the Common Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the Company. Subscriber represents and agrees that Subscriber ~~and Subscriber’s professional advisor(s), if any, have~~ has had the full opportunity to ask such questions, ~~receive~~ and has received such ~~answers,~~ answers and ~~obtain~~ obtained such information regarding the Company as Subscriber ~~and such Subscriber’s professional advisor(s), if any, have~~ has deemed necessary and adequate to make an investment decision with respect to the Common Shares. 2.1.9 Subscriber became aware of this offering of the Common Shares solely ~~by means~~ and directly from the Company as a result of ~~direct contact between Subscriber and the Issuer or its representative. Subscriber has~~ a pre-~~existing substantive~~ existing, substantial relationship ~~(as interpreted in guidance from the Commission (as defined below) under the Securities Act)~~ with the ~~Issuer or its representative~~Company, and the Common Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer or its representative~~Company. Subscriber did not become aware of this offering of the Common Shares, nor were the Common Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Company has not acted as its financial advisor, agent or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Common Shares (ia) were not offered ~~to Subscriber~~ by any form of general solicitation or general advertising ~~or, to its knowledge, general solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act~~ and (iib) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act~~ Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Common Shares. Subscriber 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 Common Shares, and Subscriber has sought such accounting, ~~legal,~~ legal and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber~~Subscriber has such knowledge and experience in financial, ~~alone, or together with any professional advisor(s), if any~~investment and business matters as to be capable of evaluating the merits and risks of the investment in the Common Shares, has adequately analyzed and fully considered the risks of an investment in the Common Shares and determined that the Common Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~Pubco~~the Company. Subscriber further acknowledges specifically that a possibility of total loss ~~exists~~of investment exists and that it is able to fend for itself in the transactions contemplated in this Subscription Agreement. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the Common Shares or made any findings or determination as to the fairness of ~~an investment in the Shares~~this investment. 2.1.13 Subscriber represents and warrants that neither Subscriber, nor any director or officer of Subscriber, nor to the knowledge of Subscriber, any employee, agent, affiliate or representative of Subscriber or any director or officer of any of its subsidiary is ~~not~~ (ia) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any ~~other~~ Executive Order issued by the President of the United States and administered by OFAC (~~collectively,~~ “OFAC ~~Lists~~List”), or a person or entity that is the subject of any sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities (“Sanctions”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (ivb) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (vc) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank, or (d) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory (including, without limitation, the Crimea region of the Ukraine, Russia, Cuba, Iran, North Korea, Sudan and Syria). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of ~~2001~~2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, ~~to the extent required,~~ it maintains policies and procedures reasonably designed ~~to ensure compliance with OFAC-administered sanctions programs, including~~ for the screening of its investors against Sanctions and the OFAC sanctions programs, including the OFAC ~~Lists~~List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Common Shares were legally derived. 2.1.14 If Subscriber ~~is an employee benefit plan that is subject~~ has, and at the Closing will have, sufficient available funds to ~~Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject~~ pay the Purchase Price pursuant to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have not acted as the Plan’s fiduciary with respect to such decision), and (ii) it has not relied on any investment advice from the Transaction Parties with respect to any decision to acquire, continue to hold, or transfer the Shares3.1. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding, or disposing of equity securities of Pubco (within the meaning of represents that no disqualifying event described in Rule ~~13d-5(b)(1~~506(d)(1)(i)-(viii) under the ~~Exchange Act~~Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below)~~. 2.1.16 The~~ , except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby ~~acknowledges and~~ agrees that it ~~will not~~shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, ~~nor will any person acting at the Subscriber’s direction~~ except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or ~~pursuant to any understanding with the Subscriber, directly~~ (iii) or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (~~or such earlier termination~~ d)(3) is applicable. For purposes of this ~~Subscription Agreement in accordance with its terms). Notwithstanding the foregoing~~Section 2.1.15, (a“Rule 506(d) ~~nothing herein~~ Related Party” shall ~~prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement~~ mean a person or ~~of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber~~ entity that is a ~~multi-managed investment vehicle whereby separate portfolio managers manage separate portions~~ direct beneficial owner of ~~such~~ Subscriber’s ~~assets and~~ securities for purposes of Rule 506(d) under the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription AgreementSecurities Act. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a

Appears in 1 contract

Sources: Subscription Agreement (PureCycle Technologies, Inc.)

Common use of Subscriber’s Representations, Warranties and Agreements Clause in Contracts