Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and the SPAC and acknowledges and agrees with the Issuer and the SPAC, as of the date hereof and as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” within the meaning of Rule 501(a) 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, (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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the Subscribed Shares shall contain a legend to such 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, 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 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 the ~~Issuer to issue~~ issuance of the Subscribed Shares, Subscriber hereby represents and warrants to ~~the Issuer~~ each of FEAC and ~~the SPAC~~ Newco and acknowledges and agrees with ~~the Issuer~~ each of FEAC and ~~the SPAC~~Newco, as of the date hereof and as of the 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 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~~ 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 other parties hereto~~FEAC and Newco, 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~~ 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (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~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) 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 ~~Subscriber’s~~ its participation in the ~~purchase of the Subscribed Shares~~Subscription, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) 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, 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, 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 (~~iii~~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 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 an entity formed for~~ aware that there are substantial risks incident to the ~~specific purpose~~ purchase and ownership of ~~acquiring~~ 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 investment in 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~the Issuer~~ 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 or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of 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 representing~~ 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 resold except as permitted under the 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule ~~144~~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, 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 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, 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 ~~the Issuer~~Newco. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by ~~the Issuer~~FEAC, Newco, enGene, the ~~SPAC~~ Placement Agents or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, other ~~than~~ than, in the case of FEAC and Newco only, those representations, warranties, 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 have not been reviewed by the Placement Agents or any outside party or, 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~~ 2.1.7. Subscriber ~~represents and warrants that its acquisition and holding~~ does not have, as of the ~~Subscribed Shares~~ 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 ~~constitute~~ 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 ~~result in a non-exempt prohibited transaction under Section 406~~ short sale positions with respect to the securities of FEAC. 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”), (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 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 ~~applicable other~~ 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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~~ (iiiv) 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (~~each~~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 ~~the Issuer~~FEAC, ~~the SPAC nor~~ Newco, enGene or any 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. ~~2.1.14 Except~~ 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 ~~expressly disclosed~~ 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 ~~a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber~~ connection with the ~~United States Securities~~ offer and ~~Exchange Commission~~ 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 representations, warranties and covenants of FEAC and Newco contained in 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 ~~“Commission”~~Placement Agents), other than FEAC, Newco, enGene and their respective representatives concerning FEAC, Newco, enGene or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇ 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 FEAC, Newco, enGene, and the 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 and obtain such information as Subscriber and 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 ~~beneficial ownership~~ Subscription, the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of FEAC, Newco and enGene 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 ~~SPAC’s common stock~~offering of the Subscribed Shares and of FEAC, Newco and enGene. 2.1.11. 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 Subscription and is not ~~currently~~ 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, FEAC, Newco, enGene or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and ~~at all times through Closing~~ will ~~refrain from being~~ not make any representation or ~~becoming~~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) ~~a member~~ 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 Subscription and the Transactions or any of ~~a “group”~~ the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~within the meaning of Section 13(d)(3~~with respect to any person) or ~~Section 14(d)(2~~any thereof, or (ii) of 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, FEAC, Newco, enGene, the Subscription or the Transactions, (d) ~~acting for~~ the ~~purpose of acquiring~~Placement Agents, ~~holding~~ their respective affiliates or ~~disposing of equity securities~~ any control persons, officers, directors, employees, partners, agents or representatives of the ~~Issuer~~ Placement Agents or ~~the SPAC~~ their respective affiliates, shall have no liability or obligation (~~within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national~~ including without limitation, for 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 in~~with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses

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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~the SPAC and acknowledges~~ Holdings and agrees with the ~~Issuer~~ Company and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA, (ii) is acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account 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 ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I following the signature page hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~with respect to the Issuer, Paysafe~~(collectively, the ~~SPAC~~ “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the ~~Transactions~~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 ~~(i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ had the full opportunity to ask ~~such~~ the Company’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, 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~~ that any changes to the ~~Transactions~~information contained in the Disclosure Documents, ~~the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ including any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters~~relying upon any projections contained in the Investor Presentation. 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~~ Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer, the SPAC~~ Company or ~~one of their respective representatives~~Holdings. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 Securities, and 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 the investment in the Securities, has analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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”), ~~Subscriber represents~~ that it 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If~~ 2.1.14 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 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is ~~an employee benefit plan~~ 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 ~~subject to Title I~~ applicable. For purposes of ~~ERISA~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a ~~plan, an individual retirement account~~ person or ~~other arrangement that is subject to section 4975 of the Code or an employee benefit plan~~ 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) 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 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 SharesCompany. ~~2.1.14~~ 2.1.17 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~~securities of the Company 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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) and that will acquire a substantial in~~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 ~~the Issuer~~ Pubco to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ Pubco and acknowledges and agrees with the Issuer and ~~the SPAC~~Pubco, as of the date hereof and as of the ~~Closing Date~~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 ~~other parties hereto~~Issuer and 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 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~~ would, in each case, reasonably be expected to have a ~~material~~ materially adverse effect on the ~~legal authority~~ ability of Subscriber to enter into and timely perform its obligations under this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~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 ~~subsidiaries or any of their respective properties that would~~ properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber ~~Material Adverse Effect~~to enter into and timely perform its obligations under this Subscription Agreement. 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 II attached hereto, (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 (~~iii~~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 ~~following the signature page~~ attached 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 ~~the Issuer~~ 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 ~~cases~~ 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing restrictions and,~~ as a ~~result~~result of the transfer restrictions described herein, 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 ~~the Issuer~~Pubco. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, Pubco, the ~~SPAC~~ 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 ~~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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~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 ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ or Pubco concerning the Issuer or ~~the SPAC~~ 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, ~~Paysafe~~Pubco, the ~~SPAC~~ Company, 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. 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 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 ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~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 or general advertising~~solicitation, 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. ~~2.1.12~~ 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~~ 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 ~~List~~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 ~~person~~ citizen, national, or ~~entity prohibited~~ 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 ~~any OFAC sanctions program~~the United States, (iiiv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515~~ 515, or (~~iii~~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,~~ represents that if ~~requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber~~ 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 ~~represents that 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 ~~List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 ~~none of~~ (i) it has not relied on the ~~Issuer, the SPAC nor~~ Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) ~~has acted~~ as the Plan’s ~~fiduciary, or has been relied on for advice,~~ fiduciary with respect to its decision to acquire and hold the ~~Subscribed Shares,~~ Shares (and ~~none of~~ acknowledges that the Transaction Parties ~~shall at any time be relied upon~~ 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 ~~Subscribed~~ Shares. 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, 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 ~~the Issuer or the SPAC~~ Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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 a 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) ~~and that~~ will acquire ~~a substantial in~~a

Appears in 3 contracts

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

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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 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 other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (i) is ~~(a)~~ a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) 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, (ii) if an Israeli resident or entity, is an investor in 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 ~~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,~~ 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 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 account and (~~iii~~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 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 the Securities Law, and that the ~~Subscribed~~ Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the ~~Subscribed~~ 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 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 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 ~~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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the 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 ~~(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 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~~ acknowledges that Credit Suisse Securities (USA) LLC and ~~warrants it is relying exclusively on its own sources of information~~▇▇▇▇▇ and Company, ~~investment analysis~~ LLC (collectively, the “Placement Agents”) and ~~due diligence (including professional advice you deem appropriate)~~ their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ Company or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Issuer or the Company. Subscriber acknowledges ~~and agrees~~ that (a) ~~each~~ 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 ~~is acting solely as placement agent~~ nor any of their affiliates have prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability~~ that any changes to such information, including any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agents or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives (including the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program, (ii) a Designated National as defined in~~ program or 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~~Department of State. 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. If 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 ~~represents that it~~ 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 for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ 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 ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ its affiliates (collectively, 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. 2.1.14 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, 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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 If 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~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) ~~and that~~ 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 ~~a substantial in~~control (as defin

Appears in 3 contracts

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

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule 501(a) 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, (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,~~ 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 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 account and (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 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 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 ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the ~~Transactions~~Transactions and 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 ~~(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 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~~ acknowledges that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources of information~~respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ 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 ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe~~Shares, 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~~ (aii) ~~each of~~ neither the Placement ~~Agents is acting solely as placement agent~~ Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ that any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agent or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. 2.1.14 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, 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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 2.1.16 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) ~~and that~~ will acquire a substantial ininterest 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 the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and the SPAC and acknowledges and agrees with the Issuer and the SPAC, as of the date hereof and as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 other parties hereto, 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 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” within the meaning of Rule 501(a) 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, (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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the Subscribed Shares shall contain a legend to such 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, 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, ~~Paysafe~~Tempo, the SPAC and the 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 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~~ it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial ~~and~~ or otherwise), management, operations, properties and prospects of the Issuer, ~~Paysafe~~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 ~~Subscriptions~~ 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, ~~Paysafe~~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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 ininteres

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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and the ~~SPAC~~ Placement Agents (as defined below) and acknowledges and agrees with the Issuer and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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 of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D 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 II hereto, (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, 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, 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 account and (iii) 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from 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 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, ~~the SPAC~~ Rigetti, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, 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, in each case, may give rise to potential conflicts of interest or the appearance thereof. ~~2.1.7 Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained in this Subscription Agreement~~agreements herein. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ Rigetti and the ~~Transactions~~Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to 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 ~~(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 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 (ai) ~~each~~ 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 ~~is acting solely as placement agent~~ nor any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and ~~is not acting as an underwriter or in any other capacity in connection with~~ sale of 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)~~ Shares. Neither of the Placement Agents ~~have not~~ nor any of their respective affiliates has made ~~and will not make~~ or makes any ~~representation or warranty~~representation, ~~whether~~ express or implied, as to the Issuer, Rigetti, their credit quality, the quality or value of ~~any kind~~ the Shares, the Acquisition or ~~character and have not provided any advice~~ the other transactions contemplated hereby, or ~~recommendation in~~ the Subscriber’s purchase of the Shares. In connection with the ~~Transactions~~issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, ~~(c)~~ neither of 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~~ nor any of ~~the documents furnished pursuant thereto~~ their respective affiliates has acted as a financial advisor or ~~in connection therewith, or the execution, legality, validity or enforceability (with respect~~ fiduciary 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) Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have no any liability or any obligation ~~(including without limitation~~to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, ~~for~~ 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 ~~any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber,~~ the Issuer, ~~the SPAC~~ Rigetti or its subsidiaries or any ~~other person or entity), whether in contract, tort or otherwise, to Subscriber~~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 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 ~~claiming through Subscriber~~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 ~~respect~~ any research reports prepared by the Placement Agents or any of ~~the Transactions~~their respective affiliates. ~~2.1.10~~ 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 Rigetti or a representative of the Issuer, including the ~~SPAC~~ Placement Agents. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or ~~one~~ its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or Rigetti or a representative of ~~their respective representatives~~the Issuer. 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 by any form of general 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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). 2.1.12. Alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12 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 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~~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”), ~~Subscriber represents that it~~ 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 indesi

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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Note to Subscriber at the Closing, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) 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~~deliver, ~~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 (including the transactions contemplated herein) 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 ~~other parties hereto~~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 or other laws relating to or affecting the rights of creditors ~~generally,~~ 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 Note 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 Note and 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 Note (including the underlying 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 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~~ Subscriber, pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, 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 reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ability of, or prevent, impair, delay or impede the legal authority of of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription 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~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 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 execution, delivery and performance by Subscriber of this Subscription Agreement. 2.1.6 Subscriber is (i~~) is (a~~) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule I attached hereto, (bii) an ~~Institutional Account~~ “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the Note and the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) 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”), (iv) 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”), (v) acquiring the Note and the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Note and 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 acknowledgments, representations, warranties, and agreements herein on behalf of each owner of each such account, and (cvi) not acquiring the Note and 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). Subscriber is not an entity formed for the specific purpose of acquiring the Note and the Shares. 2.1.7 Subscriber is a sophisticated ~~institutional~~ investor, experienced in investing in securities 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~~ and has exercised independent judgment in evaluating its 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, and Subscriber has full investment discretion with respect to each such account, Note and the full power and authority to make the acknowledgements, representations, 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 (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.8 Subscriber understands that the ~~Subscribed~~ Note and 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 ~~Subscribed~~ Note and the Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction, and as a result, the sale of the Note and the Shares to Subscriber is being made pursuant to an exemption from registration under the Securities Act. Subscriber understands that the ~~Subscribed~~ Note and 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 the ~~Issuer~~ 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ Note and 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 ~~Subscribed~~ Note and the Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Note and the Shares and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Note and 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 ~~Subscribed~~ Note (including the underlying Shares). By making the representations herein, Subscriber ~~has determined based on its own independent review and such professional advice as it deems appropriate that its purchase~~ does not agree to hold any of the ~~Subscribed~~ Note (including the underlying Shares) for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares ~~are~~ at any time in accordance with or pursuant to a ~~suitable investment for Subscriber, notwithstanding~~ registration statement or an exemption under the ~~substantial risks inherent in investing in or holding the Subscribed Shares~~Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Note and the Shares directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the ~~Issuer~~Company, ▇▇▇▇▇ & Company Capital Markets, a division of J.V.B. Financial Group, LLC (the ~~SPAC~~ “Placement Agent”), or any of their respective ~~officers~~ affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, together with the Placement Agent, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, covenants and agreements of the Company expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by the Company expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Note and the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Note or the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Note or the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Subscribed~~ Note and 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 ~~other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code~~ Similar Law (~~collectively, “Similar Laws”~~as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Subscribed~~ Note and the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance 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~~any Non-Party Affiliate concerning the Company, the ~~“Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer~~ Note or the ~~SPAC or the Subscribed Shares or~~ Shares, the offer and sale of the ~~Subscribed Shares~~Note and the Shares 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 ~~Subscribed~~ Note and the Shares, including with respect to the ~~Issuer, Paysafe~~Company, the ~~SPAC~~ offer and sale of the Note and the ~~Transactions~~Shares 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 Subscriber’s investment in the Note and 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 the Company, (the “Disclosure Package”), provided by 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 ~~(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~~ necessary, without reliance on the Placement Agent, to make an investment decision with respect to the ~~Subscribed~~ Note and the Shares and conducted and completed their own independent diligence concerning the Company, the Note, the Shares, the offer and sale of the Note and the Shares and the other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber ~~represents~~ has deemed appropriate, Subscriber has independently made its own analysis and ~~warrants it~~ decision to subscribe for and purchase the Note and the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Company 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 ~~you deem~~ it deems appropriate) with respect to the ~~Transactions~~Company, the ~~Subscribed~~ Note or the Shares, the offer and sale of the Note and the Shares or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that none of the Placement Agent or any of their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “Representatives”) have made any independent investigation with respect to the Company, the Note or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Company or any of its subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of their respective affiliates with respect to its decision to invest in the Note and the Shares, including information related to the Company, the Note, the Shares and the ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe,~~ Note and the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit~~ Shares and ~~tax matters. 2.1.9 Subscriber acknowledges and agrees that~~ (aii) ~~each~~ none of the Placement ~~Agents is acting solely as placement agent~~ Agent or any of their affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Note and 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 TransactionsShares. ~~2.1.10~~ 2.1.14 Subscriber became aware of this offering of the ~~Subscribed~~ Note and the Shares solely by means of direct contact between ~~Subscriber~~ Subscriber, on the one hand, and the ~~Issuer~~Company or its representatives (including the Placement Agent), on the ~~SPAC or one of their respective representatives~~other hand. The Note and the Shares were offered to Subscriber solely by such direct contact. Subscriber did not become aware of this offering of the ~~Subscribed~~ Note and the Shares, nor were the ~~Subscribed~~ Note or the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer represents~~ Note and ~~warrants that~~ the ~~Subscribed~~ Shares (i) were not offered to it by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects,~~ 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,~~ Act or any other applicable ~~state~~ securities laws. ~~2.1.11~~ 2.1.15 Subscriber ~~understands~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ~~agrees that no federal or state agency has passed upon or endorsed the merits~~ ownership of the ~~offering of~~ Note and the ~~Subscribed Shares or made any findings or determination as to the fairness of an investment~~ Shares, including those set forth in the ~~Subscribed Shares. 2.1.12 Subscriber represents~~ Disclosure Package and ~~warrants that Subscriber is not~~ the Company SEC Documents (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~~below). ~~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. If~~ Subscriber is a ~~financial institution subject~~ sophisticated institutional investor, is able to fend for itself in the ~~Bank Secrecy Act (31 U.S.C. Section 5311 et seq.)~~transactions contemplated herein, as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any has such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inknowl

Appears in 2 contracts

Sources: Subscription Agreement (Captivision Inc.), Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Units to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~Closing, as follows: ~~2.1.1~~ (i) If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 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 other parties hereto, then this Subscription Agreement is the valid and binding obligation of Subscriber, 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 or other laws relating to or affecting the rights of creditors 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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, or (~~iii~~C) 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ (iv) Subscriber (iA) if not an Israeli resident or entity, is ~~(a)~~ 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) 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, (iiB) if an Israeli resident or entity, is an investor in 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, (C) is acquiring the ~~Subscribed Shares~~ Units only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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~~ Units in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction ~~and (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Units. ~~2.1.5~~ (v) Subscriber understands that the ~~Subscribed 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 ~~Subscribed Shares~~ Units have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the ~~Subscribed Shares~~ Units and the underlying securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i1) to 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 or (~~iii~~3) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of 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 ~~Subscribed Shares~~ Units and the underlying securities shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed 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 ~~Subscribed Shares~~ Units and the underlying securities will be subject to the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 SharesUnits. ~~2.1.6~~ (vi) Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Units directly from the Issuer. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ SPAC, the Placement Agents 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. 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 ~~represents and warrants~~ is an employee benefit plan that ~~its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406~~ 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 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 ~~other 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”)~~law. ~~2.1.8~~ (viii) In making its decision to purchase the ~~Subscribed Shares~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the representations~~its own sources of information, ~~warranties~~ investment analysis and ~~covenants of the Issuer~~ due diligence (including professional advice it deems appropriate) and the ~~SPAC contained~~ Issuer’s express representations and warranties in ~~this Subscription Agreement~~Section ‎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 (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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Sharesanyone. Subscriber acknowledges and agrees that Subscriber (A) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Units (including with respect to the Issuer, ~~Paysafe,~~ the SPAC and the 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 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 ~~(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 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~~Units. Subscriber ~~represents~~ acknowledges that Barclays Capital Inc. and ~~warrants it is relying exclusively on its own sources of information~~Cantor F▇▇▇▇▇▇▇▇▇ & Co. (collectively, ~~investment analysis~~ the “Placement Agents”) and ~~due diligence (including professional advice you deem appropriate)~~ their respective directors, officers, employees, representatives and controlling persons have made no independent investigation 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 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 ~~person~~ information provided by the Placement Agents or ~~entity)~~any of the Placement Agents’ affiliates with respect to its decision to invest in the Units (including information related to the Issuer, ~~whether~~ 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 ~~contract~~connection with the offer and sale of the Units. Subscriber acknowledges that the information provided to Subscriber is preliminary and subject to change, ~~tort~~ and that any changes to such information, including any changes based on updated information or ~~otherwise~~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 ~~person claiming through Subscriber~~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 ~~Transactions~~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. ~~2.1.10~~ (ix) Subscriber became aware of this offering of the ~~Subscribed Shares~~ Units solely by means of direct contact ~~between Subscriber~~ from either the Placement Agents, the Issuer or the SPAC as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer, the SPAC or ~~one of~~ their respective ~~representatives~~representatives (including the Placement Agents), and the Units were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents, the Issuer or the SPAC. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Units, nor were the ~~Subscribed Shares~~ Units offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed Shares~~ Units (iA) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (iiB) ~~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, or any ~~applicable~~ state or foreign securities laws. ~~2.1.11~~ (x) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the 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 Units, and 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 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 Units hereunder meets (A) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (B) the institutional customer exemption under FINRA Rule 2111(b). (xi) Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. (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 ~~Subscribed Shares~~ Units or made any findings or determination as to the fairness of an investment in the ~~Subscribed 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. ~~2.1.12~~ (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 (“SDN List”) or any other similar list of sanctioned persons, each of which 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inan

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Closing Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA, (ii) is acquiring the ~~Subscribed Shares~~ Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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, 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 (iii) is not acquiring the ~~Subscribed 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed 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 ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to the ~~Issuer~~ Securities 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 cases (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 ~~Subscribed Shares~~ Securities shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Subscribed Shares~~ 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect~~ Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 ~~(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 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by ▇▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ that the Placement Agent and its ~~own sources of information~~respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Securities or the accuracy, completeness or adequacy of any information supplied to the ~~Subscribed Shares and~~ Subscriber by 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 Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 Agent or any of the ~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~Placement Agent’s affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Securities, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Securities and the ~~Transactions~~offer and sale of the Securities. The information provided to the Subscriber is preliminary and subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Closing Securities hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely by means of direct contact from the Placement Agent or directly from the Company as a result of a pre-exiting, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 Securities, and 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 the purchase and sale of the 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 Alone, or together with any professional advisor(s), 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 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Closing Securities were legally derived. ~~2.1.13 If~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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 Shareshas, and ~~none of~~ at 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. 2.1.14 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~~ have, sufficient funds to pay the ~~meaning of~~ Purchase Price pursuant to 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ 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 ~~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 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 ~~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 in~~Securities Act.

Appears in 2 contracts

Sources: Subscription Agreement (Nuvve Holding Corp.), Subscription Agreement (Newborn 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date, 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 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 ~~other parties hereto~~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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) of Rule ~~501(a)~~ 501 under the Securities Act~~, (b~~) ~~an Institutional Account~~ or a “qualified purchaser” as defined in ~~FINRA Rule 4512(c~~Section 2(a)(51)(A) ~~and (c) a sophisticated institutional investor, experienced in investing in transactions~~ of the ~~type contemplated by this Subscription Agreement and capable~~ Investment Company Act of ~~evaluating investment risks independently~~1940, 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 caseas amended, 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 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 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 account and (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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. Subscriber understands that the ~~Subscribed~~ 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 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 or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of 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 ~~Subscribed~~ Shares shall contain a legend to such effect (~~provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144~~a “Restricted Legend”). 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~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 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 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon an independent investigation made by Subscriber and the Issuer’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~the Company and the Transactions and 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 ~~SPAC and~~ Subscriber acknowledges that it has had an adequate opportunity to review the ~~Transactions~~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 ~~(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 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~~ acknowledges that Barclays Capital Inc., ▇▇▇▇▇▇▇▇▇ LLC, BTIG, LLC and ~~warrants it is relying exclusively on its own sources~~ ▇▇▇▇▇▇▇ & 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 ~~information, investment analysis~~ the Shares and ~~due diligence (including professional advice you deem appropriate)~~ have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ Company or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Issuer or the Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, 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~~ information related 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)~~Company, ~~whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ the Shares and the offer and sale of the ~~Transactions~~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. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agents or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agents has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares ~~(i)~~ were not offered by any form of advertising or, to such Subscriber's knowledge, general solicitation ~~or general advertising, including methods described in section 502(c)~~ (within the meaning of Regulation D under the Securities ~~Act~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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) ~~assuming~~ has exercised independent judgment in evaluating its participation in the ~~representations and warranties~~ purchase of the ~~Issuer are true~~ Shares 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,~~ (B) the ~~Securities Act, or any applicable state securities laws~~purchase and sale of the Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1). 2.1.11 Alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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~~ 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 ~~Executive Order issued~~ other 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 List~~Sanctions Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a ~~person~~ citizen, national, or ~~entity prohibited~~ 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 ~~any OFAC sanctions program~~the United States, (iiiv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515~~ 515, or (~~iii~~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. If 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 ~~represents that 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 U.S. sanctions programs, including for the screening of its investors against the ~~OFAC sanctions programs, including the OFAC List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inor

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 the Issuer to issue the Subscribed Shares and to induce the Sponsor to transfer the Transferred Sponsor Shares, Subscriber hereby represents and warrants to the Issuer and the ~~SPAC~~ Sponsor, as applicable, and acknowledges and agrees with the Issuer and the ~~SPAC~~Sponsor, as applicable, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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. ~~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~~ any violation of ~~any~~ the provisions of the ~~terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets~~ organizational documents of Subscriber or any of its subsidiaries ~~pursuant to the terms~~ or (ii) result in any violation of any ~~indenture~~law, ~~mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber~~ statute or any judgment, order, rule or regulation of ~~its subsidiaries is a party~~ any court or ~~by which~~ governmental agency or body, domestic or foreign, having jurisdiction over 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~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule 501(a) 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 and receipt of transfer of the Transferred Sponsor Shares, in each case, satisfying the applicable requirements set forth on Schedule I, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB who is investing in the Subscribed Shares, (ii) is acquiring the Subscribed Shares and receiving transfer of the Transferred Sponsor Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares or receiving transfer of the Transferred Sponsor 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~~ the- acknowledgements, representations, 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 or Transferred Sponsor Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and receipt of transfer of the Transferred Sponsor Shares and is not acquiring the Subscribed Shares or receiving transfer of the Transferred Sponsor 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 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 or receiving transfer of the Transferred Sponsor Shares. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed Shares are being offered and the Transferred Sponsor Shares are being transferred in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to the Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares and the Transferred Sponsor Shares have not been registered under the Securities Act or any other applicable securities laws, and that the Subscribed Shares and Transferred Sponsor Shares are being offered for resale in a transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares and Transferred Sponsor Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 or in a transaction not subject to the registration requirements of the Securities Act, and in each ~~of cases (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 representing~~ the Subscribed Shares and Transferred Sponsor Shares shall ~~contain~~ be subject to a legend to such 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 and Transferred Sponsor Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares and Transferred Sponsor Shares will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the Subscribed Shares and Transferred Sponsor Shares and may be required to bear the financial risk of an investment in the Subscribed Shares and Transferred Sponsor 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 or transfer of any of the Subscribed Shares and Transferred Sponsor 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 and Transferred Sponsor Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares and Transferred Sponsor Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the ~~Issuer~~Issuer and receiving transfer of the Transferred Sponsor Shares from the Sponsor. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by as applicable, the Issuer, the ~~SPAC~~ Company, 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. ~~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 or Transferred Sponsor 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 other applicable ~~other~~ 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”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Shares and receive transfer of the Transferred Sponsor Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer ~~and the SPAC contained~~ expressly set forth in 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 (including ~~Credit Suisse Securities (USA)~~ without limitation, J.V.B. Financial Group, LLC, acting through its ▇.▇. ▇▇▇ & Company Capital Markets division, and ▇▇▇▇▇▇ ~~Securities~~ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC ~~and BofA Securities, Inc.~~ (collectively, in their capacity as placement ~~agents~~agents or capital markets advisors, as applicable, the “Placement Agents”~~)), other than the Issuer and the SPAC and~~ ) or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives ~~concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale~~ of any of the ~~Subscribed Shares~~foregoing). Subscriber acknowledges and agrees that Subscriber has ~~received~~ received, had 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 and Transferred Sponsor Shares, including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the Transactions, and that such information is preliminary and subject to change and that none of the Issuer or the Placement Agents or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other financial information (whether historical or in the form of financial forecasts or projections) of the Issuer have been prepared and reviewed solely by the Issuer and its officers and employees and have not been reviewed by the Placement Agents or any outside party or, except as expressly set forth therein, certified or audited by an independent third-party auditor or audit firm. 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~~questions of the Issuer and the Company, receive such ~~answers~~ answers, including on the financial information, 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 and Transferred Sponsor Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment ~~analysis~~ analysis, independent investigation, assessment and due diligence (including professional advice ~~you deem~~ it deems appropriate) with respect to the Transactions, the Subscribed ~~Shares~~ Shares, the Transferred Sponsor Shares, and the business, condition (financial and otherwise), management, operations, properties and prospects of the ~~Issuer, Paysafe,~~ Issuer and the ~~SPAC,~~ 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 and Transferred Sponsor Shares. 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, the transfer of the Transferred Sponsor Shares, the Sponsor, and the Issuer. ~~2.1.9~~ 2.1.9. Subscriber acknowledges that in addition to their capacity as Placement Agents, the Placement Agents are acting as capital market advisors to the Issuer, in each case in connection with the Transactions. Issuer and the Company are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. Subscriber further 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~~ Subscriber, the Issuer and the Company 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~~ Company or the Transactions, (d) none of the Placement Agents or any of their affiliates have acted as the Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares or transfer of the Transferred Sponsor Shares, and (de) 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~~ 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 Sponsor, the Company or its subsidiaries or any of their respective businesses, the Subscribed Shares or the Transferred Sponsor Shares] or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Sponsor. 2.1.11. Subscriber became aware of this offering of the Subscribed Shares and transfer of Transferred Sponsor Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares and transfer of Transferred Sponsor Shares, nor were the Subscribed Shares or Transferred Sponsor Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares ~~(i)~~ or Transferred Sponsor Shares were not offered by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.12. Subscriber ~~understands~~ acknowledges that it is aware that there are substantial risks incident to the subscription and ~~agrees that no federal or state agency has passed upon or endorsed the merits of the offering~~ ownership of the Subscribed Shares ~~or made any findings or determination~~ and Transferred Sponsor 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 ~~fairness~~ merits and risks of an investment in the Subscribed ~~Shares. 2.1.12~~ Shares and Transferred Sponsor Shares and have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber ~~represents~~ has sought such accounting, legal and ~~warrants~~ tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges 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. 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 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 shall be responsible 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of ~~their respective affiliates (the “Transaction Parties”) has acted~~ Subscriber’s tax liabilities that may arise 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 2 contracts

Sources: Subscription Agreement (Complete Solaria, Inc.), Subscription Agreement (Freedom Acquisition I Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares and the Warrants, if applicable, to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 the valid and binding agreement of the ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ ability of Subscriber to enter ~~into and timely~~ into, perform its obligations under or consummate the transactions contemplated by this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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)~~ 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~~, (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, (ii) is acquiring the ~~Subscribed~~ Shares and the Warrants, if applicable, only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed~~ 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 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 account and (iii) is not acquiring the ~~Subscribed~~ 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Shares or the Warrants. ~~2.1.5~~ 2.1.6 Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares and the Warrants have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ Shares and the Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares or the Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares or the Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Shares or the Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Shares or the Warrants 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 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~~ Shares or the ~~Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares~~Warrants. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares and the Warrants, if applicable, directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ 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”)~~amended, 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Subscribed Shares~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or~~ Shares and the ~~Subscribed Shares~~ Warrants or the offer and sale of the ~~Subscribed Shares~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has ~~received~~ 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 ~~Subscribed Shares~~Shares and the Warrants, including with respect to the Issuer, ~~Paysafe~~Study, ~~the SPAC~~ Magnet and the Transactions, and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares and the Warrants. 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 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 TransactionsWarrants. 2.1.10 Subscriber became aware of this offering of the ~~Subscribed~~ Shares and the Warrants solely by means of direct contact between Subscriber and the ~~Issuer~~Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representative, and the ~~SPAC~~ Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~its representative. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Shares and the Warrants, nor were the ~~Subscribed~~ Shares or the Warrants offered to Subscriber, by any other means. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of 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 and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that ~~the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form~~ a possibility of general solicitation or general advertising, including methods described in 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, or any applicable state securities lawstotal loss exists. ~~2.1.11~~ 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 ~~Subscribed~~ Shares or the Warrants or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Shares or the Warrants. ~~2.1.12~~ 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 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13 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 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 ~~Similar Laws~~ 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”), Subscriber represents and warrants that none~~ subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Issuer, the SPAC nor any 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 SharesCode. ~~2.1.14~~ 2.1.16 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~~Issuer’s common stock, 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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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, or will have access to, 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 ~~a foreign person~~ 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, as defined in ~~31 C.F.R. Part 800.224~~the Study Merger Agreement) ~~in which the national or subnational governments~~ will contain any untrue statement of a ~~single foreign~~ material fact or omit to state ~~have~~ any material fact necessary in order to make the statements therein, in the 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 ~~substantial interest (~~way as ~~defined in 31 C.F.R. Part 800.244) and that will acquire a substantial in~~to create any liability on the Issuer.

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ PubCo and MBSC to issue the ~~Subscribed Shares~~Acquired Securities to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer~~ PubCo and ~~the SPAC~~ MBSC and acknowledges and agrees with ~~the Issuer~~ PubCo and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ MBSC as follows: ~~2.1.1 If Subscriber is not an individual,~~ (a) Subscriber has been duly formed or incorporated and is validly existing 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 other parties hereto, this Subscription Agreement is the valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ib) 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~~ are within the ~~consummation~~ powers of ~~the transactions contemplated herein do not~~ Subscriber, have been duly authorized and will not (i) ~~conflict with~~ constitute or result in a breach or ~~violation~~ default under or conflict with (i) any order, ruling or regulation of any court or other tribunal or of ~~the terms~~ any governmental commission or ~~provisions of~~agency, or ~~constitute a default 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license agreement or other ~~agreement or instrument~~ undertaking, to which Subscriber ~~or any of its subsidiaries~~ is a 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~~bound, which would reasonably be expected to have a material adverse effect on 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 (a “Subscriber Material Adverse Effect”), ) or (ii) ~~if Subscriber is not an individual, result in~~ violate any ~~violation of the~~ provisions of ~~the~~ Subscriber’s organizational ~~documents~~ documents, including, without limitation, its articles of ~~Subscriber~~ incorporation or ~~any~~ formation papers, bylaws, indenture of ~~its subsidiaries~~ trust or ~~(iii) result in any violation of any statute~~ partnership or ~~any judgment~~operating agreement, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably as may be ~~expected to have a Subscriber Material Adverse Effect~~applicable. ~~2.1.4~~ (c) 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~~501(a)(1), (2), (3), (7), (8), (9) or (12) 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, (ii) is acquiring the ~~Subscribed Shares~~ Acquired Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed Shares~~ Acquired 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~~acknowledgments, ~~representations, warranties~~ representations 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 (iii) is not acquiring the ~~Subscribed Shares~~ Acquired 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Acquired Securities. Subscriber is an “institutional account” as defined in FINRA Rule 4512(c) or an entity that meets an exemption from filing under FINRA Rule 5123(b)(1)(A), (B), (C), (D), (E) or (J). ~~2.1.5~~ (d) If the Subscriber ~~understands~~ is a resident in Canada, or otherwise subject to applicable securities laws of a Canadian jurisdiction, then it is an “accredited investor” as such term is defined in National Instrument 45-106 – Prospectus Exemptions or section 73.3(1) of the Securities Act (Ontario), as applicable, and has completed, executed and delivered to PubCo and MBSC the Canadian Accredited Investor Representation Letter in the form attached hereto as Schedule II (including Exhibit A to Schedule II and all appendices thereto) indicating that the ~~Subscribed Shares~~ Subscriber fits within one of the prospectus exemption categories under applicable provincial securities laws as set forth therein, and confirms the truth and accuracy of all representations, warranties and covenants made in such certificate as of the date of this Agreement and as of the Closing Date. (e) Subscriber acknowledges and agrees that the Acquired Securities (including any Underlying Shares) are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Acquired Securities (and any Underlying Shares) have not been registered under the Securities ~~Act~~Act or qualified for distribution to the public under applicable securities laws in Canada, and that any certificates representing the Acquired Shares (and any Underlying Shares) shall contain the legends set forth in Section 2.1. Subscriber ~~understands~~ acknowledges and agrees that the ~~Subscribed Shares~~ Acquired Securities (and any Underlying Shares) may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act~~Act or until PubCo becomes a reporting issuer under applicable securities legislation in Canada and certain other conditions are satisfied, except (i) to ~~the Issuer~~ PubCo or a 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~~ Act, (iii) pursuant to Rule 144 under the Securities Act, provided that all of the applicable conditions thereof have been met, or (~~iii~~iv) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act, and in each of cases (i) and (iii)~~Act and, in ~~accordance with any~~ some cases, one of the limited exemptions from the prospectus requirements under applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Subscribed Shares shall contain a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)in Canada. 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~~ Acquired Securities (and any Underlying Shares) will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Acquired Securities (and any Underlying Shares) and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Acquired Securities (and any Underlying Shares) for an indefinite period of time. Subscriber ~~understands~~ acknowledges that the Acquired Securities (and any Underlying Shares) will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act until at least one year from the filing of “Form 10 information” with the SEC after the Closing Date. The Subscriber acknowledges that PubCo is not now a “reporting issuer” under the securities laws of any jurisdiction of Canada, that PubCo has no obligation to become a reporting issuer in Canada and that there is no guarantee that it will become a reporting issuer in Canada in the future; and the Subscriber further acknowledges that as a result of PubCo not being a reporting issuer in Canada, the Common Shares will be subject to an indefinite restriction on resale (i.e. “hold period”) in Canada and the hold period under applicable securities legislation in Canada will not commence until PubCo becomes a “reporting issuer” in a jurisdiction of Canada, which it has no obligation to become. Subscriber acknowledges and agrees that it has been advised to consult ~~independent~~ Canadian and U.S. legal counsel prior to making any offer, resale, pledge or transfer of any of the ~~Subscribed~~ Acquired Securities (and any Underlying Shares). The Subscriber acknowledges that it has ~~determined based on its own independent review~~ received written notice that for the purposes of applicable securities laws in Canada, the Acquired Securities (and ~~such professional advice as it deems appropriate that its purchase of~~ any Underlying Shares) will be subject to the ~~Subscribed Shares are a suitable investment for Subscriber~~following legend: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, ~~notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares~~THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND ONE DAY AFTER THE LATER OF (I) THE CLOSING DATE, AND (II) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY CANADIAN PROVINCE OR TERRITORY. ~~2.1.6~~ (f) Subscriber ~~understands~~ acknowledges and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Acquired Securities (including any Underlying Shares) directly from ~~the Issuer~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by ~~the Issuer~~PubCo, ~~the SPAC~~ MBSC, or their respective affiliates or any of their respective ~~officers~~ officers, directors, partners, members, managers or ~~directors~~employees, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ of the PubCo and MBSC included in this Subscription Agreement. ~~2.1.7~~ (g) If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406~~ is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 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”) 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 ~~applicable~~ 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) neither PubCo nor MBSC, nor any of its respective affiliates (the “Transactions 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 Acquired Securities, and none of the Transactions 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 Acquired Securities and (ii) none of the acquisition, holding and/or transfer or disposition of the Acquired Securities will result in a nonexempt prohibited transaction under ERISA or Section 4975 of the Code ~~(collectively, “Similar Laws”)~~or any similar law or regulation. ~~2.1.8~~ (h) In making its decision to subscribe for and purchase the ~~Subscribed Shares~~Acquired Securities, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and ~~the representations, warranties and covenants of the Issuer and the SPAC contained in 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~~PubCo, ~~▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities~~MBSC or the Company, ~~Inc. (collectively~~any of their respective affiliates or any of their respective control persons, ~~in their capacity as placement agents~~officers, directors, partners, members, managers or employees concerning PubCo, MBSC, the ~~“Placement Agents”))~~Company, ~~other than the Issuer and the SPAC and~~ their respective ~~representatives concerning~~ affiliates, the ~~Issuer~~ Transactions or the ~~SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares~~Acquired Securities. Subscriber acknowledges and agrees that Subscriber has ~~received~~ had access to, and 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 ~~Subscribed Shares~~Acquired Securities, including with respect to ~~the Issuer~~PubCo, ~~Paysafe~~MBSC, the ~~SPAC~~ Company, and the 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 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~~Acquired Securities. Subscriber ~~represents~~ is not relying upon, and ~~warrants it~~ has not relied upon, any statement, representation or warranty with respect to its acquisition of the Acquired Securities made by any person, including, without limitation, PubCo, MBSC or the Company, except for the statements, representations and warranties of PubCo and MBSC contained in this Subscription Agreement. Subscriber further acknowledges and agrees that the information provided to Subscriber (other than, for the avoidance of doubt, the information expressly set forth in the representations and warranties made by PubCo and MBSC herein) is ~~relying exclusively on its own sources of~~ preliminary and subject to change, and that any changes to such information, ~~investment analysis~~ including, without limitation, any changes based on updated information, shall in no way affect Subscriber’s obligations under this Subscription Agreement (including, without limitation, to purchase the Acquired Securities); provided however, that this Section 3.3(h) shall in no way limit the applicability of the representations, warranties, statements or provisions of any existing agreement between Subscriber or any of its affiliates and ~~due diligence (~~the Company or any of its affiliates, 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 Greenfire Warrants or in any ~~other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for~~ commercial relationship between Subscriber or any ~~other person~~ of its affiliates and the Company 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~~ its affiliates. (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~~ Acquired Securities solely by means of direct contact from PubCo or MBSC, and the Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and ~~the Issuer, the SPAC~~ PubCo or ~~one of their respective representatives~~MBSC. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Acquired Securities, nor were the ~~Subscribed Shares~~ Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Issuer~~ PubCo represents and warrants that the ~~Subscribed Shares~~ Acquired Securities (including any Underlying Shares) (i) were not offered to Subscriber by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects,~~ to PubCo’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any ~~applicable~~ state securities laws. ~~2.1.11~~ (j) Subscriber ~~understands~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired 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 Acquired Securities, and 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 (except for any tax liabilities to Subscriber arising by virtue of a breach of this Subscription Agreement by PubCo or MBSC), and that neither PubCo nor MBSC has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by the Subscription Agreement. (k) Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired 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. Subscriber acknowledges specifically that a possibility of total loss exists. (l) Subscriber acknowledges and agrees that no ~~federal~~ federal, provincial, territorial or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Acquired Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ (m) Neither the due diligence investigation conducted by Subscriber ~~represents~~ in connection with making its decision to acquire the Acquired Securities nor any representations and ~~warrants that~~ warranties made by Subscriber herein shall modify, amend or affect Subscriber’s right to rely on the truth, accuracy and completeness of PubCo’s representations and warranties contained herein. (n) Neither Subscriber nor, to the knowledge of Subscriber, any of its officers, directors, (or managers of U.S. limited liability companies, or its equivalent thereof under Canadian corporate laws), 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 administered by ~~the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)~~ 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) directly or indirectly 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, Russia, 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 (~~iii~~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. If 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”), Subscriber represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 2 contracts

Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.), Subscription Agreement (M3-Brigade Acquisition III Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ capacity to enter into, 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 ~~other parties hereto~~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. ~~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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~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 “accredited investor” within the meaning of Rule 501(a) under the Securities Act, ~~(b)~~ an Institutional Account as defined in FINRA Rule 4512(c) ~~and (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, ~~(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, 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, 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 ~~(iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except ~~(i)~~ to 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 cases (i‎(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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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 ~~the relevant resale~~ any provisions of ~~Rule 144~~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, 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 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, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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~~, Paysafe, the SPAC and the 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 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 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 ingeneral

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~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. 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~~ if Subscriber is not an individual, result in ~~a breach or~~ any violation of ~~any~~ the provisions of the ~~terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets~~ organizational documents of Subscriber or any of its subsidiaries ~~pursuant to the terms~~ or (ii) result in any violation of any ~~indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber~~ statute or any judgment, order, rule or regulation of ~~its subsidiaries is a party~~ any court or ~~by which~~ governmental agency or body, domestic or foreign, having jurisdiction over 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~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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 “accredited investor” within the meaning of Rule 501(a) under the Securities ~~Act,~~ Act or (by) an Institutional Account as defined in FINRA Rule 4512(c) and (cb) 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, (ii) is acquiring the Subscribed Shares only for his, her or 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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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, 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by or on behalf of the Issuer, ~~the SPAC~~ Jasper, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). 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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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 ▇.▇. ▇▇▇▇▇▇▇▇ ~~Securities LLC~~ & Co. and ~~BofA Securities~~▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, ~~Inc.~~ L.L.C. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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, ~~Paysafe, the SPAC~~ Jasper and the 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 terms of the Transactions, shall in no way affect the Subscriber’s obligation to purchase the Subscribed Shares hereunder, except as otherwise provided herein. 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 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, Paysafe,~~ Issuer and ~~the SPAC,~~ 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 ~~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, 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, ~~or any other matter concerning~~ the Issuer, ~~Paysafe, the SPAC~~ 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~~, 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. 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, the SPAC~~ Issuer or Jasper or 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 by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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) owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on the 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 in the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. 2.1.14 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~~Issuer’s ~~common stock~~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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inof

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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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, 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, 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 account and (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ For purposes of ~~the Subscribed Shares are a suitable investment for Subscriber~~this Subscription Agreement, ~~notwithstanding the substantial risks inherent~~ “Transfer” shall mean any direct or indirect transfer, redemption, disposition or monetization in ~~investing in or holding the Subscribed Shares~~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 ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC~~ Issuer and the 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 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 ~~Subscribed~~ Shares. , and Subscriber ~~represents and warrants it is relying exclusively on~~ has made its own ~~sources of information, investment analysis~~ assessment and ~~due diligence (including professional advice you deem appropriate) with respect~~ satisfied itself concerning the relevant tax and other economic considerations relevant 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 mattersits Subscription. 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 or its representatives. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representatives, and the ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective~~ its 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 by any form of general solicitation or general advertising, including methods described in 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, 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. 2.1.11 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 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) (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. or other laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code (collectively, “Similar ~~Laws~~ 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 or arrangement~~ (~~each~~ii) and (iii) (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~none of the~~ (x) neither Issuer, ~~the SPAC~~ 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 ~~its~~ the Subscriber’s decision to acquire ~~and~~ or 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 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. 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. ~~2.1.14~~ 2.1.15 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~~Issuer’s ~~common stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ 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~~ not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Subscription Closing as a ~~substantial in~~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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or or, if Subscriber is not an individual, any of its subsidiaries is a party or by which Subscriber or 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 or, if Subscriber is not an individual, any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on~~ materially 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 (a “Subscriber Material Adverse Effect”),~~ 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~~ subsidiaries; 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 or, if Subscriber is not an individual, any of its subsidiaries or any of their respective properties that would reasonably be expected to ~~have a~~ materially affect the ability or legal authority of Subscriber ~~Material Adverse Effect~~to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule 501(a) 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 IA, (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 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 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 (iii) 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~~ Act. Subscriber has completed Schedule I A following the signature page ~~hereto)~~hereto and the information contained therein is accurate and complete. 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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-entry notations representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer~~Company, ~~the SPAC~~ Sabre or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company expressly set forth in this Subscription Agreement. 2.1.7 As of the date of this Subscription Agreement, 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 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 ~~other federal~~similar law, ~~state, local, non-U.S. or other~~ to the extent such laws ~~or regulations that~~ are ~~similar~~ applicable to ~~such provisions of ERISA or the Code (collectively, “Similar Laws”)~~Subscriber. 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC~~ Company and the ~~Transactions~~Transaction. 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 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~~ and/or its investment manager or adviser has a pre-existing substantive relationship with the ~~Transactions and is not acting as an underwriter or in any other capacity in connection with~~ Company, Sabre and/or H2C Securities Inc. (the ~~Subscriptions and is not and shall not be construed as a fiduciary for~~ “Placement Agent”). The Shares were offered to 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~~Company, Sabre and/or the ~~SPAC or one of their respective representatives. Subscriber did~~ Placement Agent, and the Shares were not ~~become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares~~ offered to ~~Subscriber,~~ Subscriber by any other means. Subscriber acknowledges that the ~~Issuer represents and warrants that the Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase of the Shares. 2.1.11 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 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) owned or controlled by, or acting on behalf of, a person that is named on the 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 (~~iii~~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. If 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 ~~represents that 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 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. ~~2.1.13~~ 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~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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) none of the ~~Issuer~~Company, ~~the SPAC~~ Sabre nor any of their respective employees, representatives or 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; (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. ~~2.1.14~~ 2.1.15 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~~Company’s Class A common ~~stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ 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. ~~2.1.15~~ 2.1.16 At the time of funding the Applicable Purchase Price prior to the Closing, Subscriber will have sufficient funds to pay the Applicable Purchase Price pursuant to Section 3.1. 2.1.17 To the extent Subscriber is ~~not a foreign person (as defined~~ 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) and that will acquire a substantial inRule 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 the valid and binding agreement of the ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ ability of Subscriber to enter into and timely perform its obligations under or consummate the transactions contemplated by this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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, 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, 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 account and (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ Study or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber has ~~received~~ 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 ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~Study, ~~the SPAC~~ Magnet and the ~~Transactions~~Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. 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 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 or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representative, and the ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~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 by any form of general solicitation or general advertising, including methods described in 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, 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. 2.1.11 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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 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 ~~Similar Laws~~ 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”), Subscriber represents and warrants that none~~ subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Issuer, the SPAC nor any 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 SharesCode. ~~2.1.14~~ 2.1.15 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~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ 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~~ not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a ~~substantial in~~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 the ~~Issuer to issue~~ issuance of the Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and the ~~SPAC~~ Placement Agents and acknowledges and agrees with the ~~Issuer~~ Company and the ~~SPAC~~Placement Agents, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (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 (13) 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, (bc) is an ~~Institutional Account~~ “institutional account” (as defined in ~~FINRA~~ 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 (ce) 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 ~~Subscriber’s~~ its participation in the ~~purchase of the Subscribed Shares~~Subscription, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) 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~~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 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 (~~iii~~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 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 an entity formed for~~ aware that there are substantial risks incident to the ~~specific purpose~~ purchase and ownership of ~~acquiring~~ 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 investment in 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing~~ 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 resold except as permitted under the 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule ~~144~~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, 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 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~~ able at this time and in the ~~Subscribed Shares directly from~~ foreseeable future to bear the ~~Issuer~~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~~ a possibility of total loss exists. 2.1.7. If Subscriber ~~by the Issuer~~is a Canadian Person, the ~~SPAC or any of their respective officers or directors~~Subscriber acknowledges that, ~~expressly or by implication~~notwithstanding anything herein to the contrary, ~~other than those representations~~including Section 2.1.6, ~~warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of~~ 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 or written notice provided 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 ~~constitute~~ 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 Disclosure Time (as defined in Section 6.19 below) or ~~result~~ the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in ~~a non-exempt prohibited transaction~~ Rule 16a-1 under ~~Section 406~~ 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”), (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 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 ~~applicable other~~ 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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~~ (iiiv) 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (~~each~~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 ~~Issuer, the SPAC nor~~ Company or any of ~~their respective~~ 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. ~~2.1.14 Except~~ 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 representations, warranties and covenants of the Company contained in 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 ~~expressly disclosed~~ placement agents, the “Placement Agents”)), other than the Company and its representatives concerning 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 ~~a Schedule 13D or Schedule 13G (or amendments thereto) filed by such~~ order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company. 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 ~~United States Securities~~ Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such answers and ~~Exchange Commission~~ obtain such information as Subscriber and ▇▇▇▇▇▇▇▇▇▇’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 (~~the “Commission”~~including professional advice it deems appropriate) with respect to the ~~beneficial ownership~~ Subscription, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the ~~SPAC~~Company, 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 ~~common stock,~~ due diligence review of the offering of the Subscribed Shares and of the Company. 2.1.12. Subscriber acknowledges and 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 ~~currently~~ 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 Company or any other person or entity in connection with the Subscription, (ii) the Placement Agents have not made and ~~at all times through Closing~~ will ~~refrain from being~~ not make any representation or ~~becoming~~warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) ~~a member~~ the Placement Agents will have no responsibility to Subscriber with respect to any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of ~~a “group”~~ the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~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 ~~disposing of equity securities~~ any control persons, officers, directors, employees, partners, agents or representatives of the ~~Issuer~~ Placement Agents or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 intheir respect

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC~~Company, as of the date hereof and as of the 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 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 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 ~~other parties hereto~~Company and the 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 (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors 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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 3.1.4. Subscriber (ia) is (ai) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities ~~Act~~Act (“Accredited Investor”), (bii) an Institutional Account as defined in ~~FINRA~~ Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”) and (ciii) 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, 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, (iib) is acquiring the Subscribed Shares only for its own ~~account~~ or for its controlled affiliate(s)’s account(s) 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~~any other third party, and ~~Subscriber~~ (c) has ~~full investment discretion with respect to each such account, and~~ exercised independent judgment in evaluating its participation in the full power and authority to make the acknowledgements, representations, 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 purchase of the Subscribed Shares ~~in any manner that would violate the securities laws of the United States or any other applicable jurisdiction~~ and ~~(iii)~~ 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (ia) to the ~~Issuer~~ 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 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 cases (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 representing~~ 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 resold except as permitted under the 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 (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, 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 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~~ 3.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer~~Company, the ~~SPAC~~ Sponsor or any of their respective ~~officers~~ affiliates, 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 and agreements expressly set forth in this Subscription Agreement~~. 2.1.7~~ , and Subscriber ~~represents and warrants that its acquisition and holding of the Subscribed Shares will~~ is 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 relying on any applicable other 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”). 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 representations, warranties ~~and~~ or covenants ~~of the Issuer and the SPAC contained~~ other than those expressly set forth in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the Transactions 3.1.7. 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~~questions of the Company, receive such ~~answers~~ 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~~ analysis, independent investigation, assessment and due diligence (including professional advice ~~you deem~~ 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, Paysafe,~~ Company and ~~the SPAC,~~ 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 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 3.1.8. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between ~~Subscriber and the Issuer~~Subscriber, the ~~SPAC~~ Sponsor, the Company or 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. Subscriber acknowledges that the ~~Issuer represents and warrants that the~~ Subscribed Shares ~~(i)~~ were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, or any ~~applicable~~ state securities ~~laws~~law. ~~2.1.11~~ 3.1.9. Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription and ownership of the 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 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 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. 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 Subscribed ~~Shares~~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). ~~2.1.12~~ 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 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 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 List~~Sanctions Lists”), ) or a person or entity ~~prohibited by~~ 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 Sanctions List; (c) organized, incorporated, established, located, or resident in, or the government of (including any political subdivision, agency, or instrumentality thereof) any country or territory that is the target of comprehensive sanctions (currently Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic); (d) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~e) 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) financial consultant has acted ~~as the Plan’s fiduciary, or has been relied~~ on ~~for advice,~~ behalf of Subscriber in connection 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. 2.1.14 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 the Issuer this Subscription Agreement or the ~~SPAC (within~~ transactions contemplated hereby in such a way as to create any liability on the ~~meaning of Rule 13d-5(b)(1) under the Exchange Act)~~Company or its affiliates. 2.1.15 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 in

Appears in 1 contract

Sources: Backstop Subscription Agreement (VinFast Auto Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA, (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,~~ 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, 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 (iii) 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to the ~~Issuer~~ 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 cases (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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect~~ Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 ~~(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 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 ~~Subscribed~~ Shares. The Subscriber ~~represents~~ 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 ~~warrants it is relying exclusively on its own sources of information~~that the Placement Agents and their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscribed Shares and~~ Subscriber by 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 Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Shares and the ~~Transactions~~offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ that any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from the Placement Agents or directly from the Company as a result of a pre-exiting, substantial relationship with the Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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. 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 Alone, or together with any professional advisor(s), 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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 Shareshas, and ~~none of~~ at 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. 2.1.14 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~~ have, sufficient funds to pay the ~~meaning of~~ Purchase Price pursuant to 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ 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 ~~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 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 ~~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 in~~Securities Act.

Appears in 1 contract

Sources: Subscription Agreement (Mountain Crest Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ Grove to issue the applicable Subscribed Shares, Subscriber hereby represents and warrants to ~~the Issuer and the SPAC~~ Grove and acknowledges and agrees with ~~the Issuer and the SPAC~~▇▇▇▇▇, as of the date hereof and as of the Closing ~~Date~~Date (as defined below), 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 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~~ 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 other parties hereto~~Grove, 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~~ 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~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 “accredited investor” within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act~~, (b) an Institutional Account as defined in FINRA Rule 4512(c~~”) and (cb) 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 IA, (ii) is acquiring the ~~Subscribed Shares only~~ Securities for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed Shares~~ 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 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~~ Securities in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the ~~Subscribed Shares~~ Securities with a view ~~to, or for offer or sale in connection with~~towards, any distribution thereof in violation of the Securities ~~Act (~~Act; provided, however, that by making the representations herein, Subscriber does not agree to hold any of the Securities or any other securities for any minimum or other specific term and ~~shall provide~~ reserves the ~~requested information on Schedule I following~~ right to dispose of the ~~signature page hereto)~~Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. ~~2.1.5~~ 2.1.5. Subscriber understands that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ issuer of such 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 applicable exemption from the registration requirements of the Securities ~~Act~~Act (including Rule 144), and in each of 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 representing~~ the ~~Subscribed Shares~~ Securities shall ~~contain~~ be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale ~~provisions of Rule 144~~as set forth in this Subscription Agreement). Subscriber acknowledges that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that unless the ~~Subscribed Shares~~ resale of the Securities is covered by an effective registration statement under the Securities Act, the Securities will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 or transfer of any of the ~~Subscribed Shares~~Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that ~~its purchase of~~ the ~~Subscribed Shares~~ Securities are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the ~~Subscribed Shares~~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 Grove. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares directly~~ Securities from ~~the Issuer~~Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by ~~the Issuer, the SPAC~~ Grove or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.7 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 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 other 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”). 2.1.8 2.1.7. In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of ~~the Issuer and the SPAC~~ Grove contained in 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”))anyone, other than ~~the Issuer~~ Grove and ~~the SPAC and their respective~~ its representatives concerning ~~the Issuer or the SPAC or the Subscribed Shares~~ Grove, Securities or the offer and sale of the ~~Subscribed Shares~~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 ~~Subscribed Shares~~Securities, including with respect to ~~the Issuer, Paysafe, the SPAC and the Transactions~~Grove. 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 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~~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~~ it deems appropriate) with respect to the ~~Transactions, the Subscribed Shares~~ Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of ~~the Issuer, Paysafe, and the SPAC~~Grove, 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 2.1.8. Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely by means of direct contact between Subscriber and ~~the Issuer, the SPAC~~ Grove or one of their respective representatives. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that ~~the Issuer~~ Grove represents and warrants that the ~~Subscribed Shares (i)~~ Securities were not offered by any form of general 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.9. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Securities. ~~2.1.12~~ 2.1.10. 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 2.1.11. 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 ininterest in Grove 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 Grove from and after the Closing as a result of the purchase and sale of the Securities hereunder. 2.1.12. 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 Grove. 2.1.13. Subscriber agrees that, from the date of this Subscription Agreement until the Closing, 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 Grove. For the purposes hereof, “Short Sales” shall mean all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but shall not include pledging in the ordinary course of business as part of prime brokerage arrangements. Notwithstanding the foregoing, (a) nothing herein shall prohibit any entities under common management or that share an investment advisor with Subscriber (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales and (b) in the case of a Subscriber that is a multimanaged investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets, this Section 2.1.13 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement. For the avoidance of doubt, this Section 2.1.13 shall not apply to (i) any sale (including the exercise of any redemption right) of securities of Grove (A) held by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (B) purchased by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement or (ii) ordinary course, non-speculative hedging transactions.

Appears in 1 contract

Sources: Subscription Agreement (Grove Collaborative Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (ii) is acquiring the ~~Subscribed~~ Shares and the Warrants only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed~~ 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 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 account and (iii) is not acquiring the ~~Subscribed~~ 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Shares or the Warrants. 2.1.5 Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares and the Warrants have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ Shares and the Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares or the Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares or the Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Shares or the Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Shares or the Warrants 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 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~~ Shares or the ~~Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares~~Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares and the Warrants directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their~~ its respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or~~ Shares and the ~~Subscribed Shares~~ Warrants or the offer and sale of the ~~Subscribed Shares~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares~~Shares and the Warrants, including with respect to the Issuer, ~~Paysafe~~Holdings, ~~the SPAC~~ Music and the 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 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 mattersWarrants. 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 and the Warrants solely by means of direct contact between Subscriber and the ~~Issuer~~Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representative, and the ~~SPAC~~ Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~its representative. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Shares and the Warrants, nor were the ~~Subscribed~~ Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the ~~Subscribed~~ Shares and the Warrants (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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 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 and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), 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 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 the Warrants or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Shares or the Warrants. ~~2.1.12~~ 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 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~~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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares and the Warrants were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 its decision to acquire and hold the ~~Subscribed Shares~~Shares and the Warrants, 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~~Shares and the Warrants. ~~2.1.14~~ 2.1.15 Except (i) 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~~Issuer’s common ~~stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and ~~that~~ 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~~ 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 ~~substantial in~~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 the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ capacity to enter into, 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 ~~other parties hereto~~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. ~~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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~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 “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) ~~and~~ 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, (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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 cases (i‎(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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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 ~~the relevant resale~~ any provisions of ~~Rule 144~~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, 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 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, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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~~, Paysafe, the SPAC and the 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 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 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.10. 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 Subscribed Shares. ~~2.1.12~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. ~~2.1.14~~ 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 ~~SPAC~~Issuer’s ~~common stock~~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 the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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 ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ HPX and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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, 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 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 ~~other parties hereto~~Issuer and HPX, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ 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 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~~ (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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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~~ that would reasonably be expected to ~~have a material adverse effect on~~ adversely affect the ~~legal authority of Subscriber~~ Subscriber’s ability to acquire and hold Shares and to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 Subscriber~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (aA) 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~~501(a)(1), (2), (3), (7), (9) or (12) of Regulation D under the Securities Act), ~~(b)~~ in either case satisfying the applicable requirements set forth on Schedule I, and an ~~Institutional Account~~ “institutional account” as defined in FINRA Rule 4512(c), and is not an entity formed for the specific purpose of acquiring the Shares, (B) ~~and (c)~~ is a sophisticated ~~institutional~~ investor, experienced in investing in private equity 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~~ (C) has exercised independent judgment in evaluating its participation in the purchase of the ~~Subscribed~~ Shares, ~~in each case, satisfying the applicable requirements set forth on Schedule I,~~ (iiD) 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 ~~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, ” 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 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~~ jurisdiction, (~~iii~~E) 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 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 ~~an entity formed for the specific purpose of~~ a U.S. person, (A) Subscriber is acquiring the ~~Subscribed Shares. 2.1.5~~ Shares in an "offshore transaction" meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the ~~Subscribed~~ 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 account or benefit of any person located in the 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. (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 ~~Subscribed~~ 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 ~~Subscribed~~ Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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~~Act or in a transaction not subject thereto, and in each ~~of cases (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 book entries or certificates representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer or 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, transfer or ~~transfer~~ disposition 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~~ (f) Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, statements or agreements made to Subscriber by or on behalf of the ~~Issuer, the SPAC~~ 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~~ 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, covenants, statements or agreements other than those expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents and warrants~~ (g) Subject to the assumption that ~~its acquisition and holding~~ the assets of the ~~Subscribed Shares will~~ Issuer do not constitute ~~or result in a non-exempt prohibited transaction~~ “plan assets” under ~~Section 406 of~~ the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),~~ if Subscriber is or any applicable other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, on behalf 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 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~~ 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~~ Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that ~~none~~ 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. (h) 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 upon, any statements, representation or warranty or other information provided by anyone (including HPX, the Issuer, the ~~SPAC~~ Company, 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 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 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 invest in the Shares. 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 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 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 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 the Subscription; (ii) neither the Placement Agents nor any of their respective ~~affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary~~directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or ~~has been relied on for advice~~warranty, ~~with respect to its decision to acquire and hold the Subscribed Shares~~whether express or implied, ~~and none~~ of ~~the Transaction Parties shall at~~ any ~~time be relied upon as the Plan’s fiduciary with respect to~~ kind or character nor have any ~~decision to acquire, continue to hold~~ such persons provided any advice or ~~transfer the Subscribed Shares. 2.1.14 Except as expressly disclosed~~ recommendation 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inconnection

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule 501(a) 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, (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,~~ 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 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 account and (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 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 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 ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the ~~Transactions~~Transactions and 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 ~~(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 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~~ acknowledges that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources of information~~respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ 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 ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe~~Shares, 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~~ (aii) ~~each of~~ neither the Placement ~~Agents is acting solely as placement agent~~ Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ that any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agent or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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-~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. 2.1.14 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, 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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 2.1.16 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) ~~and that~~ will acquire a substantial ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Placement Securities to Subscriber and to enter into this Subscription Agreement, Subscriber hereby represents and warrants to the Issuer and the ~~SPAC~~ Placement Agent (as defined herein) and acknowledges and agrees with the Issuer and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ Placement Agent as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 the valid and binding agreement of the ~~other parties hereto~~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. 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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~~ (as described in Rule ~~501(a~~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 II or otherwise reasonably acceptable to the Issuer, (ii) is acquiring the ~~Subscribed Shares~~ Placement Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 account and (iii) is not acquiring the ~~Subscribed 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 following the signature page hereto)~~. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed 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 ~~Subscribed 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 ~~Subscribed Shares~~ Placement Securities have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Placement Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed Shares~~ Placement Securities shall contain a legend to such ~~effect (provided~~ effect. Subscriber acknowledges and agrees that ~~such legends~~ the Placement Securities will not immediately 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~~ 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Placement Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Placement Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Placement 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 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 SharesPlacement Securities. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Placement Securities directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Placement Agent or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by the Placement Agent or any of its affiliates or any of its or their control persons, officers, directors and employees, in making its investment or decision to invest in the Issuer. ~~2.1.7~~ 2.1.8 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed Shares~~ 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”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable ~~other federal, state, local, non-U.S.~~ similar law. 2.1.9 No disclosure or ~~other laws~~ offering document has been prepared in connection with the offer and sale of the Placement Securities by any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Co. or ~~regulations that are similar to such provisions of ERISA or~~ its respective affiliates (the ~~Code (collectively,~~ “~~Similar Laws~~Placement Agent”)~~. 2.1.8~~ . In making its decision to purchase the ~~Subscribed Shares~~Placement Securities, Subscriber represents that it has relied solely upon ~~independent investigation made by Subscriber and~~ the representations, warranties and covenants ~~of the Issuer and the SPAC contained~~ set forth in this Subscription ~~Agreement~~Agreement and the independent investigation made by Subscriber. 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 and the SPAC and their respective representatives~~ Agent concerning the Issuer ~~or the SPAC or the Subscribed Shares~~ or the offer and sale of the ~~Subscribed 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 such~~ had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect to the Issuer, Paysafe, the SPAC and the Transactions~~Placement Securities. 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 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~~Placement Securities. Subscriber ~~represents and warrants it is relying exclusively on~~ has made its own ~~sources of information,~~ assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its 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 in 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 TransactionsSecurities. 2.1.10 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Placement Securities solely by means of direct contact between Subscriber and the ~~Issuer,~~ Issuer or its representative (including the ~~SPAC~~ Placement Agent) and Subscriber had a prior pre-existing relationship with the Issuer or ~~one of their respective representatives~~the Placement Agent under the U.S. securities laws interpretations. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Placement Securities, nor were the ~~Subscribed Shares~~ Placement Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the ~~Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the~~ Placement 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, or any ~~applicable~~ state securities laws. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the 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 Placement Securities, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed Shares~~ Placement Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Placement Securities. ~~2.1.12~~ 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 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~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Placement Securities were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 none of the Issuer, its affiliates or the ~~SPAC nor any of their respective affiliates~~ Placement Agent (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~~Placement Securities, 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~~Placement Securities. ~~2.1.14~~ 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 ~~United States Securities and Exchange~~ Commission ~~(the “Commission”)~~ with respect to the beneficial ownership of the ~~SPAC~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) ~~and that~~ will acquire a substantial ininterest (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.)

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ Grove to issue the applicable Subscribed ~~Shares~~Shares and the Warrants, Subscriber hereby represents and warrants to ~~the Issuer and the SPAC~~ Grove and acknowledges and agrees with ~~the Issuer and the SPAC~~▇▇▇▇▇, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 1.1.1. Subscriber has been duly formed or incorporated and is validly existing 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~~ 1.1.2. 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 other parties hereto~~Grove, 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~~ 1.1.3. 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~2.1.4~~ 1.1.4. Subscriber (i) is (a) ~~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 of 1933, as amended (the “Securities Act~~, (b) an Institutional Account as defined in FINRA Rule 4512(c~~”) and (cb) 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 IA, (ii) is acquiring the ~~Subscribed Shares only~~ Securities for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed Shares~~ 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 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~~ Securities in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the ~~Subscribed Shares~~ Securities with a view ~~to, or for offer or sale in connection with~~towards, any distribution thereof in violation of the Securities ~~Act (~~Act; provided, however, that by making the representations herein, Subscriber does not agree to hold any of the Securities or any other securities for any minimum or other specific term and ~~shall provide~~ reserves the ~~requested information on Schedule I following~~ right to dispose of the ~~signature page hereto)~~Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. ~~2.1.5~~ 1.1.5. Subscriber understands that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ issuer of such 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 applicable exemption from the registration requirements of the Securities ~~Act~~Act (including Rule 144), and in each of 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 representing~~ the ~~Subscribed Shares~~ Securities shall ~~contain~~ be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale ~~provisions of Rule 144~~as set forth in this Subscription Agreement). Subscriber acknowledges that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that unless the ~~Subscribed Shares~~ resale of the Securities is covered by an effective registration statement under the Securities Act, the Securities will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 or transfer of any of the ~~Subscribed Shares~~Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that ~~its purchase of~~ the ~~Subscribed Shares~~ Securities are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the ~~Subscribed Shares~~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 Grove. ~~2.1.6~~ 1.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares directly~~ Securities from ~~the Issuer~~Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by ~~the Issuer, the SPAC~~ Grove or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.7 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 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 other 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”). 2.1.8 1.1.7. In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of ~~the Issuer and the SPAC~~ Grove contained in 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”))anyone, other than ~~the Issuer and the SPAC~~ Grove and their respective representatives concerning ~~the Issuer or the SPAC or the Subscribed Shares~~ Grove, Securities or the offer and sale of the ~~Subscribed Shares~~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 ~~Subscribed Shares~~Securities, including with respect to ~~the Issuer, Paysafe, the SPAC and the Transactions~~Grove. 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 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~~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~~ it deems appropriate) with respect to the ~~Transactions, the Subscribed Shares~~ Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of ~~the Issuer, Paysafe, and the SPAC~~Grove, 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 1.1.8. Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely by means of direct contact between Subscriber and ~~the Issuer, the SPAC~~ Grove or one of their respective representatives. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that ~~the Issuer~~ Grove represents and warrants that the ~~Subscribed Shares (i)~~ Securities were not offered by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 1.1.9. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Securities. ~~2.1.12~~ 1.1.10. 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 1.1.11. 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 ininterest in Grove 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 Grove from and after the Closing as a result of the purchase and sale of the Securities hereunder. 1.1.12. 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 Grove. 1.1.13. Subscriber agrees that, from the date of this Subscription Agreement until the Closing, 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 Grove. For the purposes hereof, “Short Sales” shall mean all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but shall not include pledging in the ordinary course of business as part of prime brokerage arrangements. Notwithstanding the foregoing, (a) nothing herein shall prohibit any entities under common management or that share an investment advisor with Subscriber (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales and (b) in the case of a Subscriber that is a multimanaged investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets, this Section 2.1.13 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement. For the avoidance of doubt, this Section 2.1.13 shall not apply to (i) any sale (including the exercise of any redemption right) of securities of Grove (A) held by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (B) purchased by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement or (ii) ordinary course, non-speculative hedging transactions.

Appears in 1 contract

Sources: Subscription Agreement (Grove Collaborative Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA, 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 acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account 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 ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 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 following the signature page hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed 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 ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition of any of the ~~Subscribed Shares~~Securities. Notwithstanding the foregoing, the Subscriber ~~has determined based on~~ will consult its own ~~independent review~~ legal advisors with respect to trading in the Securities when issued and ~~such professional advice as it deems appropriate that its purchase~~ with respect to the resale restrictions imposed by the Canadian Securities Laws of the ~~Subscribed Shares~~ 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 ~~suitable investment~~ 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 ~~Subscriber~~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, ~~notwithstanding~~ or listing the ~~substantial risks inherent~~ Company’s securities on any stock exchange in ~~investing~~ 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 ~~or holding the Subscribed Shares~~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 ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~respect~~ 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 ~~Issuer, Paysafe, the SPAC~~ Commission and ~~the Transactions~~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 ~~(i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ had the full opportunity to ask ~~such~~ the Company’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, 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~~ that any changes to the ~~Transactions~~information contained in the Disclosure Documents, ~~the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ including any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (ai) ~~each~~ it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement ~~Agents~~ 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 ~~acting solely as placement agent~~ 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 ~~Transactions~~ offer and is 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 ~~acting as an underwriter~~ be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or ~~in any other capacity~~ hereafter taken or omitted to be taken by it 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 Subscriber’s purchase of the ~~documents furnished pursuant thereto~~ Securities. The Subscriber acknowledges that, except for the Investor Presentation, it has not received or ~~in connection therewith~~been provided with, or nor has it requested, nor does it have any need to receive, any offering memorandum (within the ~~execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise~~meaning of Canadian Securities Laws), ~~management~~any prospectus, ~~operations, properties~~ sales or ~~prospects of~~advertising literature, or any other ~~matter concerning~~ document describing or purporting to describe the ~~Issuer~~Company, ~~Paysafe~~Nauticus, ~~the SPAC~~ their business and affairs or the ~~Transactions~~transactions contemplated herein (including the Transaction) which has been prepared for delivery to, and ~~(d) the Placement Agents shall have no liability or obligation (including without limitation~~review by , ~~for or with respect~~ prospective investors in order 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 assist them in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber,~~ making an investment decision in respect of the ~~Transactions~~Securities. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely (a) by means of direct contact from the Placement Agent, the Company, Nauticus or a representative of the Placement Agent, the Company or Nauticus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ state securities ~~laws~~laws or Canadian Securities Laws. ~~2.1.11~~ 2.1.10 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 Subscribed Shares. 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 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. 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 acknowledges that it ~~maintains policies and procedures reasonably designed~~ is aware that there are substantial risks incident 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 int

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ PubCo to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ PubCo and acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~Closing, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 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 other parties hereto, then this Subscription Agreement is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on ~~the legal authority~~ Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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, ” 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 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 federal securities laws of the United States or any other applicable jurisdiction ~~and (iii) 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 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~~ Act, and that the ~~Subscribed~~ Shares have not been registered under the Securities Act. Subscriber understands that (A) the ~~Subscribed~~ 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 the ~~Issuer~~ 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~~ Act, (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 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 ~~the Issuer~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ PubCo, 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. 2.1.7 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 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 other 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”). 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 representations, warranties~~ its own investment analysis and covenants of the Issuer and the SPAC contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone due diligence (including ~~Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”~~professional advice it deems appropriate)~~), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares~~. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to ~~the Issuer, Paysafe~~PubCo, the ~~SPAC~~ Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to 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 ~~(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 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~~ further acknowledges that the information provided to Subscriber (other than the information expressly set forth in the representation and ~~warrants it~~ warranties made by the Issuer herein) is ~~relying exclusively on its own sources of information, investment analysis~~ preliminary and ~~due diligence (including professional advice you deem appropriate) with respect~~ subject 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 matterschange. 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 2.1.8 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from the Issuer or PubCo as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer, PubCo or their respective representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or ~~one of their respective representatives~~PubCo. 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~~ it did not become aware of this offering of the ~~Subscribed~~ Shares (i) ~~were not offered~~ by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, or any ~~applicable~~ state securities laws. 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.10 Alone, or together with any professional advisor(s), 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 the Shares. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program, (ii) a Designated National as defined in~~ program or 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~~Department of State. 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. If 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 ~~represents that it~~ 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 for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ 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 ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of ~~the Issuer or the SPAC~~ 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. ~~2.1.15~~ 2.1.14 If 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~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) ~~and that will acquire~~ in PubCo, no national or subnational government of a single foreign state has a substantial ininterest (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 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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Company, this Subscription Agreement is ~~the~~ a valid and binding obligation of 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 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 ~~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 pursuant to~~ under the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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~~ subsidiaries; or (iii) result in any violation of any statute or any judgment, order, 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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) 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 IA, (ii) is acquiring the ~~Subscribed Shares~~ Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 (iii) is not acquiring the ~~Subscribed 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed 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 ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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 ~~Subscribed Shares~~ Securities shall contain a legend to such 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 Acteffect. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended, or (ii) its acquisition and holding of the ~~Subscribed Shares~~ 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”)~~amended, 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect~~ Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 (i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ has had the full opportunity to ask such questions, receive such 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 ~~Subscribed Shares~~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 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 The 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) it has not relied on any ~~representations~~statements or other information provided by ▇▇▇▇▇ and Company, ~~warranties or agreements made by any person or entity under or in connection with~~ LLC (the ~~Transactions~~ “Placement Agents” or any of the ~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Securities, or including information related to the Company, the Securities and the offer and sale of the Securities and (ii) the ~~business, condition (financial~~ information provided to the Subscriber is preliminary 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 subject 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 Transactionschange. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely (a) by means of direct contact from the Placement Agents, the Company, Evolv or a representative of the Company or Evolv, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 Securities, and 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 (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 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 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 analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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”), ~~Subscriber represents~~ that it 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If~~ 2.1.14 On the date the Purchase Price will be required to be funded to the Company pursuant to Section 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 ~~an employee benefit plan~~ 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 ~~subject to Title I~~ applicable. For purposes of ~~ERISA~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a ~~plan, an individual retirement account~~ person or ~~other arrangement that is subject to section 4975 of the Code or an employee benefit plan~~ 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) 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 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 SharesCompany. ~~2.1.14~~ 2.1.17 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~~Company’s ~~common stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) ~~and that~~ will acquire a substantial ininterest 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 the Issuer to sell the Shares and / or to issue the ~~Subscribed Shares~~Warrants (as the case may be) to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date ~~hereof and as of the Closing Date~~hereof, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or ~~formation~~formation (if such concept exists in such jurisdiction), 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~~and, ~~the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming~~ assuming that this Subscription Agreement ~~constitutes~~ has been duly authorized, executed and delivered by the ~~valid and binding agreement of the other parties hereto~~Issuer, ~~this Subscription Agreement is~~ shall constitute 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 (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 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~~ pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule or regulation or any other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any~~ properties that, in the case of ~~their respective properties that~~ clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect~~. 2.1.4 Subscriber (i) is (a)~~ . For purposes of this Subscription Agreement, a “~~qualified institutional buyer~~Subscriber Material Adverse Effect” ~~(as defined in Rule 144A under the Securities Act)~~ means an event, change, development, occurrence, condition or an “accredited investor” within the meaning of Rule 501(a) 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, (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, and Subscriber has full investment discretion effect with respect to ~~each such account,~~ Subscriber that has a material adverse effect on the legal authority of Subscriber to enter into and the full power and authority to make the acknowledgements, representations, 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 (iii) 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 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 timely perform its obligations under the Securities Act. Subscriber understands that the Subscribed 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 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 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 representing the Subscribed Shares shall contain a legend to such 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, 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Ads-Tec Energy Public LTD Co)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any ~~court or governmental agency or body, domestic or foreign,~~ Governmental Authority having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6) 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 II hereto, (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, 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, 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 account and (iii) 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such 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 Acteffect. Subscriber understands and agrees that the ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 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 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, ~~the SPAC~~ Altus, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements made by the Issuer and expressly set forth in this Subscription Agreement. 2.1.7 ~~Subscriber represents and warrants that its~~ Subscriber’s 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”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a violation of any applicable ~~other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code~~ Similar Law (~~collectively, “Similar Laws”~~as defined below). 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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ Altus and the Transactions, and 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 ~~(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 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~~ further acknowledges that any information contained in Target Disclosure is preliminary and ~~warrants it is relying exclusively~~ subject to change, and that any changes to the information contained in the Target Disclosure, including, without limitation, any changes based on ~~its own sources~~ updated information or changes in terms of ~~information~~the Transaction, ~~investment analysis~~ 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 ~~due diligence (including professional advice you deem appropriate)~~ the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the ~~Transactions,~~ Issuer or Altus which Subscriber agrees need not be provided to it. In connection with the ~~Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ issuance of the ~~Issuer~~Shares to Subscriber, ~~Paysafe, and~~ none of the ~~SPAC, including but not limited~~ Placement Agents or any of their respective affiliates has acted or shall be construed to ~~all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ have acted as a financial advisor or fiduciary to Subscriber. Subscriber ~~acknowledges and~~ agrees that (a) ~~each~~ none 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 any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with ~~the Transactions~~ 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, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter concerning the Issuer, ~~Paysafe, the SPAC~~ Altus or the ~~Transactions~~offering, and (db) ~~the~~ no Placement ~~Agents~~ Agent shall have no 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, the SPAC~~ 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~~offering. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the ~~Issuer,~~ Issuer or its representatives. The Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~SPAC~~ Issuer or ~~one of their respective~~ its 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 by any form of general 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12 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~~ 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 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) 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 any 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 (~~iii~~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~~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 ~~represents that it~~ 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 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~~required by applicable law, 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. ~~2.1.13~~ 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~~ 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 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. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar ~~Laws~~ 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~~ (ii) and (iii) subject to the fiduciary or ~~arrangement~~ prohibited transaction provisions of ERISA, Section 4975 of the Code or Similar Laws (~~each~~each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~none of~~ it has not relied on the ~~Issuer, the SPAC nor~~ Issuer or any of ~~their respective~~ its affiliates (the “Transaction Parties”) ~~has acted as the Plan’s fiduciary,~~ for investment advice 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~~ its decision to acquire, continue to hold or transfer the Subscribed Shares. 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (CBRE Acquisition Sponsor, LLC)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a material adverse effect on~~ 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 (a “Subscriber Material Adverse Effect”),~~ 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would ~~reasonably be expected~~ materially affect the legal authority of Subscriber to ~~have a Subscriber Material Adverse Effect~~comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA, (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,~~ 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, 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 (iii) 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 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 the ~~Issuer~~ 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 cases (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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ Nothing under this Subscription Agreement shall prohibit the subscriber from offering, reselling or transferring any of the ~~Subscribed~~ Shares ~~are a suitable investment for Subscriber, notwithstanding~~ to an “accredited investor” pursuant to Section 4(a)(7) under the ~~substantial risks inherent in investing in or holding~~ Securities Act; provided that the ~~Subscribed Shares~~transferee agrees to be bound by the terms of this Subscription Agreement. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further~~ acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription ~~Agreement~~Agreement and the management presentation provided to Subscriber by the Company. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~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 upon the ~~representations,~~ representations and warranties ~~and covenants~~ of the ~~Issuer and the SPAC contained~~ Company made in this Subscription ~~Agreement~~Agreement and in the management presentation provided to Subscriber. 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to 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 ~~Subscribed Shares~~Shares and made its own assessment and is satisfied concerning the relevant tax, ~~including with respect~~ legal and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 ~~(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 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 ~~Subscribed~~ Shares. The Subscriber ~~represents~~ 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 ~~warrants it is relying exclusively on its own sources of information~~that the Placement Agents and their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscribed Shares and~~ Subscriber by 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 Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Shares and the ~~Transactions,~~ offer 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 sale of the ~~Transactions~~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. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely (a) by means of direct contact from one or both of the Placement Agents or (b) directly from the Company as a result of a pre-exiting, substantial relationship with the Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 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,~~ program or (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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ 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 ~~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 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 ~~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 in~~Securities Act.

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition II Co)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual~~deliver, ~~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 other parties hereto~~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~~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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~ Subscriber, or (~~iii~~ii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 subsidiaries or any of their respective properties~~ that would reasonably be expected to have an adverse effect on the ability of Subscriber to enter into and timely perform its obligations 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. 2.1.5 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) of Regulation D 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 II attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) 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, 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 (~~iii~~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 ~~following the signature page~~ attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~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~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, the ~~SPAC~~ 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~~ 2.1.9 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 1 of 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 ~~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 ~~other 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”). 2.1.8~~ law. 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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the ~~Issuer~~ Issuer, the Company or 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 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 ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~the Company, ~~the SPAC~~ 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. 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 ~~(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 reasonably necessary to make an investment decision with respect to the ~~Subscribed~~ Shares. Subscriber ~~represents~~ acknowledges that the Placement Agents (as defined below) and ~~warrants it is relying exclusively on its own sources of information~~their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ 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 ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer~~Shares, ~~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~~ (aii) ~~each~~ none of the Placement Agents ~~is acting solely as placement agent~~ or any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and ~~is not acting as an underwriter or in any other capacity~~ sale of the Shares and (iii) in connection with the ~~Subscriptions~~ issue and ~~is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with~~ purchase of the ~~Transactions~~Shares, ~~(b)~~ none of the Placement Agents ~~have not made and will not make any representation~~ has acted as the Subscriber’s financial advisor 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 Transactionsfiduciary. ~~2.1.10~~ 2.1.11 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between 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, the SPAC~~ Issuer or ~~one of their respective representatives~~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~~ it has not become aware of this offering (i) ~~were not offered~~ by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act and~~ Act, or (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. ~~2.1.11~~ 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. 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). 2.1.13 Alone, or together with any professional advisor(s), if any, Subscriber represents and acknowledges that Subscriber has considered the risks of 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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~~ 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 ~~List~~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~~ 515, or (~~iii~~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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 ~~List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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~~ 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 ~~Similar Laws~~ 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 ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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~~ hold, or transfer the ~~Subscribed~~ Shares. ~~2.1.14 Except as expressly disclosed in a Schedule 13D~~ 2.1.17 [Reserved] 2.1.18 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or ~~Schedule 13G (or amendments thereto) filed by such Subscriber~~ pursuant to any understanding with the ~~United States Securities and Exchange Commission (the~~ Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “~~Commission”) with respect to the beneficial ownership~~ short sales” as defined in Rule 200 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 Regulation SHO under the Securities ~~Exchange~~ Act of ~~1934, as amended~~ 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 ~~any successor provision) acting for the purpose of acquiring~~other similar financing arrangements), ~~holding~~ 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 ~~disposing of equity securities~~ foreign regulated brokers, of the ~~Issuer~~ Common Stock or the ~~SPAC~~ Shares until the consummation of the Transactions (~~within the meaning~~ or such earlier termination of ~~Rule 13d-5(b)(1) under the Exchange Act~~this Subscription Agreement in accordance with its terms). 2.1.15 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 in2.1.19 S

Appears in 1 contract

Sources: Subscription Agreement (Cipher Mining Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ Altimeter and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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, 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 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 ~~other parties hereto~~Issuer and Altimeter, 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 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~~ (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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ (d) 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~~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, (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, ” 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 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 account and (iii) 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 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 Subscribed Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, 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~~ offer and sale of the Shares have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ 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 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 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~~ book entries representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a 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 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~~ (f) Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Altimeter, the ~~SPAC~~ Company or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, 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 Subscriber represents and warrants that its~~ (g) Subscriber’s acquisition and holding of the ~~Subscribed~~ Shares 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) 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 ~~other 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”)~~law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the ~~Subscribed~~ Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Altimeter’s representations, warranties and ~~covenants of the Issuer and the SPAC~~ agreements contained in ~~this Subscription Agreement~~Section 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 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 and ~~the SPAC and their respective representatives~~ Altimeter concerning the Issuer or ~~the SPAC~~ Altimeter, respectively, 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~Altimeter, the ~~SPAC~~ Company, the Group and the ~~Transactions~~Transactions and 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 ~~(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 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~~ 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 ~~warrants it~~ 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 ~~you deem~~ Subscriber deems appropriate) with respect to the ~~Transactions~~Subscription, the ~~Subscribed~~ Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the ~~Issuer, Paysafe, and~~ Issuer or the ~~SPAC~~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~~ that: (ai) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the ~~Transactions~~ 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 ~~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,~~ Subscription; (bii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have ~~not made and~~ made, nor will ~~not make~~ any of such persons make, any representation or warranty, whether express or implied, of any kind or character ~~and~~ nor have ~~not~~ any such persons provided any advice or recommendation in connection with the ~~Transactions~~Subscription; (iii) the Subscriber has not relied on any statements or other information provided by the Placement Agents, ~~(c)~~ 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 (iA) any representations, warranties or agreements made by any person or entity under or in connection with the ~~Transactions~~ 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) or of any thereof, or (iiB) the business, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter ~~concerning the Issuer, Paysafe~~concerning, the ~~SPAC~~ Group or the ~~Transactions, and~~ Subscription; and (div) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have no 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, Altimeter or the ~~Issuer, the SPAC~~ 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 ~~Transactions~~Subscription. ~~2.1.10~~ (j) Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agents, the Issuer or Altimeter as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer, Altimeter or their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~Placement Agents, the ~~SPAC~~ Issuer or ~~one of their respective representatives~~Altimeter. 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 it by any form of general solicitation or general advertising, including methods described in 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~~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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ (k) Together with its investment adviser, if applicable, Subscriber 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and ~~agrees~~ 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 the institutional customer exemption under FINRA Rule 2111(b). (l) Subscriber, alone, or together with any professional advisor(s), has 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. (m) Subscriber understands 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. ~~2.1.12 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, administered or enforced from time to time by relevant governmental authorities, including, 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 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 List~~Sanctions”), including (i) any person listed in any Sanctions-related list of sanctioned persons maintained by OFAC or ~~a person~~ the U.S. Department of State, the United Nations Security Council, the European Union, or ~~entity prohibited by~~ any ~~OFAC sanctions program~~EU member state, (ii) any person operating, organized or resident in a ~~Designated National as defined in~~ country or territory which is itself the ~~Cuban Assets Control Regulations~~subject or target of any Sanctions (at the time of this Subscription Agreement, ~~31 C.F.R. Part 515~~ Crimea, Cuba, Iran, North Korea, and Syria), (iii) any person owned or controlled by, or acting on behalf of, any such person or persons; or (~~iii~~iv) 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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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”), ~~Subscriber represents~~ that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inSubscrib

Appears in 1 contract

Sources: Business Combination Agreement (Grab Holdings LTD)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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. ~~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~~ any violation of ~~any~~ the provisions of the ~~terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets~~ organizational documents of Subscriber or any of its subsidiaries ~~pursuant to the terms~~ or (ii) result in any violation of any ~~indenture~~law, ~~mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber~~ statute or any judgment, order, rule or regulation of ~~its subsidiaries is a party~~ any court or ~~by which~~ governmental agency or body, domestic or foreign, having jurisdiction over 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~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule 501(a) 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, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB who is investing in the Subscribed Shares, (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~~QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make ~~the~~ the- acknowledgements, representations, 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 (iii) 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 (and shall provide the requested information on Schedule I 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 the 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 or any other applicable securities laws, and that the Subscribed Shares are being offered for resale in transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 or in a transaction not subject to the registration requirements of the Securities Act, and in each ~~of cases (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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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, 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 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ FiscalNote, 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. ~~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 ~~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 other applicable ~~other~~ 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC contained~~ expressly set forth in 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 (including ~~Credit Suisse Securities (USA) LLC~~without limitation, ▇.J.▇. ▇▇▇▇▇▇ Securities LLC and ~~BofA Securities,~~ Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, the “Placement Agents”~~)), other than the Issuer and the SPAC and~~ ) or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives ~~concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale~~ of any of the ~~Subscribed Shares~~foregoing). Subscriber acknowledges and agrees that Subscriber has ~~received~~ received, had 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, ~~Paysafe, the SPAC~~ FiscalNote and the Transactions, and that such information is preliminary and subject to change and that none of the Issuer or the Placement Agents or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other financial information (whether historical or in the form of financial forecasts or projections) of the Issuer have been prepared and reviewed solely by the Issuer and its officers and employees and have not been reviewed by the Placement Agents or any outside party or, except as expressly set forth therein, certified or audited by an independent third-party auditor or audit firm. 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~~questions of the Issuer and FiscalNote, receive such ~~answers~~ answers, including on the financial information, 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~~ analysis, independent investigation, assessment and due diligence (including professional advice ~~you deem~~ 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, Paysafe,~~ Issuer and ~~the SPAC,~~ FiscalNote 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. 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 that in addition to their capacity as Placement Agents, J.▇. ▇▇▇▇▇▇ Securities LLC is acting as sell side advisor to FiscalNote, and Citigroup Global Markets Inc. is acting as capital market advisor to the Issuer, in each case in connection with the Transactions. Issuer and FiscalNote are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. Subscriber further 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~~ Subscriber, the Issuer and FiscalNote 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~~ FiscalNote or the Transactions, (d) none of the Placement Agents or any of their affiliates have acted as the Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares, and (de) 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~~ 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, FiscalNote or its subsidiaries or any of their respective businesses, or the Subscribed Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ Act. 2.1.12. Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription and ~~(ii) assuming the representations and warranties~~ ownership of the ~~Issuer are true~~ Subscribed Shares and ~~correct~~ is able to fend for itself in ~~all material respects~~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 have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, ~~are not being offered in~~ and 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 ~~manner involving a public offering under~~result of the transactions contemplated by this Subscription Agreement, ~~or in a distribution in violation of~~and that neither FiscalNote, the ~~Securities Act~~Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any ~~applicable state securities laws~~other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. ~~2.1.11~~ 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.12~~ 2.1.14. Subscriber represents and warrants that none of Subscriber or 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 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 or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “~~OFAC List~~Sanctions Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a ~~Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or~~ Sanctions List; (iii) ~~a non-U.S. shell bank~~ organized, incorporated, established, located, resident 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciaryborn in, or ~~has been relied on for advice~~a citizen, 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. 2.1.14 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”)national, or ~~any successor provision) acting for~~ the ~~purpose of acquiring~~government, holding or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 ininc

Appears in 1 contract

Sources: Subscription Agreement (Duddell Street Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and the ~~SPAC and acknowledges~~ Placement Agents (as defined herein) and agrees with the ~~Issuer~~ Company and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ Placement Agents as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Company, this Subscription Agreement ~~is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a 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 (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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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) 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, A. (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,~~ 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, 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 (iii) 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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. Subscriber understands that the ~~Subscribed~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to the ~~Issuer~~ 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 cases (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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective officers~~ its officers, directors or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~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 ~~representations, warranties and covenants of the Issuer and the SPAC contained~~ Company’s representations in ~~this Subscription Agreement~~Section 2.2. 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect~~ Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has had an adequate opportunity to review the ~~Transactions~~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 ~~(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 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 ~~Subscribed~~ Shares. The Subscriber ~~represents~~ 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 ~~warrants it is relying exclusively on its own sources of information~~that the Placement Agents and their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company, the ~~Subscribed~~ Target or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Shares and the ~~Transactions~~offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder, except as otherwise set forth in this Subscription Agreement. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from the Placement Agents or directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed~~ Shares ~~(i)~~ were not offered by any form of advertising, or, to the Subscriber’s knowledge, general solicitation ~~or general advertising~~(within the meaning of Regulation 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 ~~methods described~~ those set forth in ~~section 502(c) of Regulation D under~~ the forms, reports, registration statements and other documents filed by the Company with the Securities ~~Act~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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) ~~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, or any applicable state securities lawsinstitutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 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,~~ represents that if ~~requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber~~ 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 ~~represents that 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~~required by applicable law and regulation, it 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~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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~~ Section 3.1. 2.1.15 Without limitation of the ~~Code or an employee benefit plan~~ foregoing, the Subscriber hereby further acknowledges and agrees that (i) the Placement Agent is ~~a governmental plan (~~acting solely as ~~defined~~ placement agent 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~~ connection with the transactions contemplated hereby and is not ~~subject to the foregoing but may be subject to provisions under~~ acting as an underwriter, initial purchaser, dealer or in any other ~~Similar Laws~~ such capacity and is not and shall not be construed as a fiduciary for the Subscriber, the Company or an any other person or entity ~~whose underlying assets are considered to include “plan assets”~~ in connection with the transactions contemplated hereby, (ii) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any ~~such plan~~kind or character and have not provided any advice or recommendation in connection with the transactions contemplated hereby, ~~account or arrangement~~ and (~~each, a “Plan”), Subscriber represents and warrants that none of~~ iii) the ~~Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice,~~ Placement Agent will have no responsibility with respect to ~~its decision to acquire and hold~~ (A) any representations, warranties or agreements made by any person or entity under or in connection with the ~~Subscribed Shares, and none~~ transactions contemplated hereby or any of the ~~Transaction Parties shall at any time be relied upon as~~ documents furnished pursuant thereto or in connection therewith, or the ~~Plan’s fiduciary~~ execution, legality, validity or enforceability (with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. 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)(2person) of any thereof, or (B) the ~~Securities Exchange Act of 1934~~financial condition, ~~as amended (the “Exchange Act”)~~business, or any ~~successor provision~~other matter concerning the Company or the transactions contemplated hereby. The Subscriber will not look to the Placement Agents for all or part of any such loss or losses the Subscriber may suffer and is able to sustain a complete loss on its investment in the Shares. The Subscriber (for itself and for each account for which the Subscriber is acquiring the Shares) acknowledges that such Subscriber is aware that Citigroup Global Markets Inc. and Barclays Capital Inc. are acting ~~for~~ as the ~~purpose~~ Company’s Placement Agents in connection with this Subscription Agreement and are also acting as financial advisors to the Target in connection with the Transaction. 2.1.16 Subscriber has no binding arrangement in place to sell, transfer or otherwise dispose of ~~acquiring, holding or disposing of equity securities~~ any of the ~~Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~Shares. 2.1.15 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 in

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ CAC and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ CAC 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~~deliver, ~~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 the valid and binding agreement of the ~~other parties hereto~~Issuer and CAC, 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~~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 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~~ Subscriber, 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ ability of Subscriber to enter into and timely perform its obligations under this Subscription 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~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 subsidiaries~~ Subscriber, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 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) of Regulation D 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 II attached hereto, (ii) an institutional account as defined in FINRA Rule 4512(c), (iii) 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”), (iv) 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”), (v) 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, ” 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 (~~iii~~vi) 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 ~~following the signature page~~ attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ Shares. 2.1.5 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. 2.1.6 Subscriber understands that the ~~Subscribed~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ 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 ~~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 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ such transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, ~~pledge~~ pledge, or transfer of any of the ~~Subscribed~~ Shares. By making the representations herein, Subscriber ~~has determined based on its own independent review and such professional advice as it deems appropriate that its purchase~~ does not agree to hold any of the ~~Subscribed~~ Shares ~~are~~ 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 ~~suitable investment for Subscriber, notwithstanding~~ registration statement or an exemption under the ~~substantial risks inherent in investing in or holding the Subscribed Shares~~Securities Act. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, CAC, the ~~SPAC~~ 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~~ 2.1.8 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. 2.1.9 Subscriber represents and warrants that either (i) it is not a Benefit Plan Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~2.1.8~~ 2.1.10 In making its decision to purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and CAC’s representations, warranties and ~~covenants of the Issuer~~ agreements in Section 2.2 and ~~the SPAC contained in this Subscription Agreement~~Section 2.3 hereof. 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 and ~~the SPAC and their respective representatives~~ CAC concerning the ~~Issuer~~ Issuer, CAC, the Company or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~CAC, the ~~SPAC~~ Company, 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. Subscriber acknowledges that it has reviewed the documents made available to the Subscriber by CAC and the Company, including any such documents available in the Commission’s ▇▇▇▇▇ system. 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~~ acknowledges that the Placement Agents (as defined below) and ~~warrants it is relying exclusively on its own sources of information~~their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, CAC, the ~~Subscribed~~ Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer, CAC or the Company. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Issuer’s or CAC’s representations, warranties, covenants and agreements contained in this Subscription Agreement. 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 ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer~~Shares, ~~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~~ (aii) ~~each~~ none of the Placement Agents ~~is acting solely as placement agent~~ or any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and ~~is not acting as an underwriter or in any other capacity~~ sale of the Shares and (iii) in connection with the ~~Subscriptions~~ issue and ~~is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with~~ purchase of the ~~Transactions~~Shares, ~~(b)~~ none of the Placement Agents ~~have not made and will not make any representation~~ has acted as the Subscriber’s financial advisor 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 Transactionsfiduciary. ~~2.1.10~~ 2.1.11 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the Issuer, ~~the SPAC~~ CAC or ~~one of~~ their respective representatives. The Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer, CAC or its 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 it by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects~~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 ~~applicable~~ state securities laws. ~~2.1.11~~ 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 ~~agrees~~ acknowledges that the purchase and sale of the Shares hereunder meets, to its knowledge, (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.13 Subscriber represents and acknowledges that Subscriber, alone, or together with 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.14 Subscriber understands 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. ~~2.1.12~~ 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~~ 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 ~~List~~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) except as disclosed by Subscriber, 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 (~~iii~~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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 ~~List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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~~ 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 innot

Appears in 1 contract

Sources: Subscription Agreement (Arqit Quantum Inc.)

Appears in 1 contract

Sources: Subscription Agreement (PureCycle Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Placement Securities to Subscriber and to induce the Issuer and Strive to enter into this Subscription Agreement, Subscriber hereby represents and warrants to the ~~Issuer~~ Issuer, Strive and the ~~SPAC~~ Placement Agent and acknowledges and agrees with the ~~Issuer~~ Issuer, Strive and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ Placement Agent as follows: ~~2.1.1 If Subscriber is not an individual,~~ 2.2.1 Subscriber has been duly formed or incorporated and is validly existing 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~~ 2.2.2 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 ~~other parties hereto~~Issuer and Strive, this Subscription Agreement is the valid and binding obligation of the 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~~ 2.2.3 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.2.4 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~~ (as described in Rule ~~501(a~~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, (ii) is acquiring the ~~Subscribed Shares~~ Placement Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 account and (iii) is not acquiring the ~~Subscribed 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares. 2.1.5~~ Placement Securities. Subscriber understands that the ~~Subscribed Shares~~ offering of the Placement Securities hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.2.5 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 Placement Securities. 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). 2.2.6 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 ~~Subscribed Shares~~ Placement Securities have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Placement Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed Shares~~ Placement Securities shall contain a legend to such ~~effect (provided~~ effect. Subscriber acknowledges and agrees that ~~such legends~~ the Placement Securities will not immediately 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~~ 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Placement Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Placement Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Placement 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 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 SharesPlacement Securities. ~~2.1.6~~ 2.2.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Placement Securities directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Strive, the ~~SPAC~~ Placement Agent or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.2.8 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed Shares~~ 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”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable ~~other federal, state, local, non-U.S.~~ similar law. 2.2.9 No disclosure or ~~other laws~~ offering document has been prepared in connection with the offer and sale of the Placement Securities by any of Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. or ~~regulations that are similar to such provisions of ERISA or~~ its respective affiliates (the ~~Code (collectively,~~ “~~Similar Laws~~Placement Agent”)~~. 2.1.8~~ . In making its decision to purchase the ~~Subscribed Shares~~Placement Securities, Subscriber represents that it has relied solely upon ~~independent investigation made by Subscriber and~~ the representations, warranties and covenants ~~of the Issuer~~ set forth in this Agreement and the ~~SPAC contained in this Subscription Agreement~~independent investigation made by Subscriber. 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 and the SPAC and their respective representatives~~ Agent concerning the ~~Issuer or the SPAC or the Subscribed Shares~~ Issuer, Strive or the offer and sale of the ~~Subscribed Shares~~Placement Securities. Subscriber acknowledges and agrees that Subscriber ~~has received such~~ had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect to the Issuer, Paysafe, the SPAC and the Transactions~~Placement Securities. 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 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~~Placement Securities. Subscriber ~~represents and warrants it is relying exclusively on~~ has made its own ~~sources of information,~~ assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment ~~analysis and due diligence (including professional advice you deem appropriate) with respect to~~ in 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 mattersPlacement Securities. 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 2.2.10 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Placement Securities solely by means of direct contact between Subscriber and the ~~Issuer,~~ Issuer or its representative (including the ~~SPAC or one of their respective representatives~~Placement Agent). Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Placement Securities, nor were the ~~Subscribed Shares~~ Placement Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the ~~Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the~~ Placement 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 2.2.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Placement Securities, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by Strive. 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 Placement Securities, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.2.12 Without limiting the representations, warranties and covenants set forth in this Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.2.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Placement Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Placement Securities. ~~2.1.12~~ 2.2.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons 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~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Placement Securities were legally derived. ~~2.1.13~~ 2.2.15 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 its decision to acquire and hold the ~~Subscribed Shares~~Placement Securities, 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~~Placement Securities. ~~2.1.14~~ 2.2.16 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 ~~United States Securities and Exchange~~ Commission ~~(the “Commission”)~~ with respect to the beneficial ownership of the ~~SPAC~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 2.2.17 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) ~~and that~~ will acquire a substantial ininterest (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. 2.2.18 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 Placement Securities. 2.2.19 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, Strive or Asset Management. 2.2.20 The Subscriber acknowledges that (i) the Issuer, Strive, Asset Management and the Placement Agent currently may have, and later may come into possession of, inf

Appears in 1 contract

Sources: Subscription Agreement (Asset Entities Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6) 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 II hereto, (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, 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, 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 account and (iii) 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 ~~following the signature page~~ hereto). If Subscriber is not an individual, Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Shares and is an “institutional account” as defined by FINRA Rule 4512(c). 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 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 or agreements made to Subscriber by Deutsche Bank Securities Inc., Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc. and J.▇. ▇▇▇▇▇▇ Securities LLC (collectively, the “Placement Agents”), the Issuer, ~~the SPAC~~ Blade, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 ~~Subscriber represents and warrants that its~~ Subscriber’s 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ Blade and the Transactions, and 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 reviewed (i) the Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (ii) a presentation with respect to Blade provided to Subscriber by the Issuer (the “Target Disclosure”). 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 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~~ further acknowledges that any information contained in Target Disclosure is preliminary and ~~warrants it is relying exclusively on its own sources of information~~subject to change, ~~investment analysis~~ and ~~due diligence (including professional advice you deem appropriate) with respect~~ that any changes to the ~~Transactions~~information contained in the Target Disclosure, ~~the Subscribed Shares and the business~~including, ~~condition (financial and otherwise)~~without limitation, ~~management, operations, properties and prospects~~ any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Shares hereunder, ~~and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ except as otherwise provided herein. Subscriber acknowledges and agrees that (ai) ~~each~~ none of the Placement Agents, or 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) none of the Placement Agents ~~is acting solely as placement agent~~ nor any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and is sale of the Shares. None of the Placement Agents or any of their respective affiliates has made or makes any representation as to the Issuer, Blade 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 Blade which Subscriber agrees need not ~~acting~~ 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 as ~~an underwriter~~ a financial advisor or in fiduciary to Subscriber. Subscriber agrees that none of the Placement Agents shall be liable to any ~~other capacity~~ Subscriber for any action heretofore or hereafter taken or omitted to be taken by any of them 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 Subscriber’s purchase 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 TransactionsShares. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the ~~Issuer~~Issuer or its representatives. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representatives, and the ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective~~ its 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 by any form of general 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12 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 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~~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 ~~represents that it~~ 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ 2.1.15 Except (i) 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~~Issuer’s common ~~stock~~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 or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Blade Urban Air Mobility, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ Newco to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to Rigel, Target Companies, Sellers, Newco and Citigroup Global Markets Inc. (“Citi”) and H&P Advisory Ltd (“H▇▇▇▇▇” and, together with Citi, the ~~Issuer~~ “Placement Agents”) and ~~the SPAC~~ Rand Merchant Bank, a division of Firstrand Bank Limited (“RMB”) and acknowledges and agrees with R▇▇▇▇, Newco, the ~~Issuer~~ Target Companies, the Sellers, the Placement Agents and ~~the SPAC~~RMB, as ~~of the date hereof and as of the Closing Date~~applicable, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 the valid and binding agreement of ~~the other parties hereto~~Rigel and Newco, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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~~ (as described in Rule ~~501(a~~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, (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, 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 (iii) is acquiring the Shares only for its own account 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 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 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 (iii) 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 the laws of any other jurisdiction (and shall provide the requested information on Schedule I following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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, including Subscriber’s participation in the purchase of the Shares, in each case, satisfying the applicable requirements set forth on Schedule I, and has the ability to bear the economic risks of an investment in the Shares and can afford a complete loss of such investment, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understands that the ~~Subscribed~~ 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). Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Shares and participation in the Transactions (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to it, (iii) have been duly authorized and approved by all necessary action and (iv) is a fit, proper and suitable investment, notwithstanding the substantial risks inherent in investing in or holding 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 If 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, as amended (the “EU Prospectus Regulation”) and is not (a) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (b) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of M▇▇▇▇ ▇▇. 2.1.7 If resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of the EU Prospectus Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 and an investment professional falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the “Financial Promotion Order”) or a high net worth company or other person who falls within Article 49(2)(a) to (d) of the Financial Promotion Order, or a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Promotion Order) in connection with the issue or sale of any securities may otherwise lawfully be communicated or caused to be communicated. 2.1.8 If resident in South Africa, Subscriber (a) falls within the exemptions set out in section 96 (1)(a) or (b) of the South African Companies Act No 71 of 2008 (as amended) (the “South African Companies Act”) and as such, accepts that the offer by N▇▇▇▇ does not constitute an “offer to the public” as contemplated in the South African Companies Act, (b) accepts and understands that as a result of the Shares being offered in a transaction not involving any public offering within the meaning of the South African Companies Act, no prospectus (as contemplated in the South African Companies Act) has been or will be filed with or approved by the Companies and Intellectual Property Commission in respect of the offering of the Shares and (c) to the extent required, has obtained all the necessary regulatory approvals (including, but not limited to exchange control approvals from its authorised dealer and/or from the South African Reserve Bank) to partake in the offering of the Shares. 2.1.9 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 ~~Subscribed~~ Shares have not been registered under the Securities ~~Act~~Act or the laws of any other jurisdiction. Subscriber understands that the ~~Subscribed~~ 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 ~~the Issuer~~ 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 or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United ~~States~~States and any other applicable jurisdictions, and that any certificates representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided~~ effect. Subscriber acknowledges and agrees that ~~such legends~~ the Shares will not immediately 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~~ 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 ~~Subscribed~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.10 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from ~~the Issuer~~Newco. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by ~~the Issuer~~or on behalf of Newco, Rigel, the ~~SPAC~~ Sellers, the Target Companies, the Placement Agents, RMB or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of Rigel, Newco, the Sellers and Sponsor expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.11 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 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 ~~other 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”)~~law. ~~2.1.8~~ 2.1.12 No disclosure or offering document has been prepared in connection with the offer and sale of the Shares by any of the Placement Agents, RMB or their respective affiliates. In making its decision to purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon ~~independent investigation made by Subscriber and~~ the representations, warranties and covenants of Rigel, Newco, the ~~Issuer~~ Sellers and the ~~SPAC contained~~ Sponsor set forth in this ~~Subscription Agreement~~Agreement and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information or advice provided by ~~anyone (including Credit Suisse Securities (USA) LLC~~or on behalf of the Placement Agents, ~~▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents~~RMB, the ~~“Placement Agents”))~~Sellers, ~~other than the Issuer and the SPAC and their respective representatives concerning the Issuer~~ Sponsor or the ~~SPAC~~ Target Companies concerning Rigel, Newco, the Sellers, Sponsor or the ~~Subscribed Shares or~~ Target Companies for the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber ~~has received such~~ had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to ~~the Issuer~~Rigel, ~~Paysafe~~Newco, the ~~SPAC~~ Target Companies and the 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)~~ them in connection with the Transactions, have had the full opportunity to ask such questions, including on the financial information, 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 ~~Subscribed~~ Shares. Subscriber ~~represents and warrants it is relying exclusively on~~ has made its own ~~sources of information~~assessment, ~~investment analysis~~ conducted and completed its own independent due diligence ~~(including professional advice you deem appropriate) with respect~~ and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in 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 mattersShares. ~~2.1.9~~ 2.1.13 Subscriber acknowledges and agrees that (ai) it has been informed that each of the Placement Agents is acting solely as R▇▇▇▇’▇ placement agent in connection with the Transactions and that RMB is ~~not~~ acting as financial advisor to the Target Companies and that neither is acting as an underwriter or in any other capacity in connection with the ~~Subscriptions and~~ offering and, other than RMB with respect to the Target Companies, is not and shall not be construed as a fiduciary or financial advisor for ~~Subscriber~~ Subscriber, Rigel, the Sellers, the Target Companies or any other person ~~or entity~~ in connection with the ~~Transactions~~Transactions and all of the information provided to the Subscriber constitutes factual information as contemplated in section 1(3)(a) of the South African Financial Advisory and Intermediary Services Act No. 37 of 2002 (as amended) (the “FAIS Act”) and does not constitute the furnishing of, any “advice” as defined in the South African Financial Markets Act No. 19 of 2012 (bas amended) and/or FAIS Act and any of the information provided in respect of the Shares should not be construed as an express or implied recommendation, guidance or proposal that any particular transaction is appropriate to the particular investment objectives, financial situations or needs of the Subscriber, and none of the information provided in respect of the offering of the Shares should be construed as constituting the canvassing for, or marketing or advertising of, financial services in the Republic of South A▇▇▇▇▇.▇▇ terms of the FAIS Act(ii) the Placement Agents and RMB 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 and (ciii) the Placement Agents and RMB will not have no any responsibility with respect to (ia) any representations, warranties or agreements made by any person or entity under or in connection with the ~~Transactions or any~~ execution, delivery and performance of ~~the documents furnished pursuant thereto or in connection therewith~~this Subscription Agreement, or the execution, legality, validity or enforceability (with respect to any person) ~~or any~~ thereof, or (iib) the business, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter concerning ~~the Issuer~~Rigel, ~~Paysafe, the SPAC~~ Newco or the Target Companies, or (c) the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of Rigel, Newco or the Target Companies pursuant to this Subscription Agreement or in connection with the Transactions~~, and (d)~~ . Each of the Placement Agents ~~shall have no liability~~ and RMB may rely upon these representations and warranties of Subscriber. R▇▇▇▇ is solely responsible for paying any fees or ~~obligation (including without limitation, for or~~ other commission owed to the Placement Agents in connection 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~~ 2.1.14 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and ~~the Issuer~~Rigel, Newco, the ~~SPAC~~ Sellers, the Target Companies or ~~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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares representatives (~~i) were not offered by any form of general solicitation or general advertising,~~ including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Rigel Resource Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual~~deliver, ~~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 other parties hereto~~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~~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 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~~ subsidiaries, if any, 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~~ subsidiaries, if any, is a ~~party~~ party, or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, is subject, which would reasonably be expected to have ~~a material~~ an adverse effect on the ~~legal authority~~ ability of Subscriber to enter into and timely perform its obligations ~~under~~ under, this Subscription 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~~ subsidiaries, if any, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 ~~subsidiaries~~ subsidiaries, if any, or any of their respective properties that would reasonably be expected to have 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. 2.1.5 Subscriber is (i~~) is (a~~) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D 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 II attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) acquiring its entire beneficial ownership in 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, 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 acquiring the shares 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 (iii)~~ 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 ~~following the signature page~~ attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 required to register the 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~~ Subscriber, unless the resale of the Shares has been registered pursuant to an effective registration statement under the Securities Act, except (i) to 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~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~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company, the Placement Agent (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~~ 2.1.9 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 1 of 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 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 ~~other 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”)~~law. ~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the ~~Issuer~~ Issuer, the Company or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~the Company, ~~the SPAC~~ 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. 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 ~~(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 reasonably necessary to make an investment decision with respect to the ~~Subscribed~~ Shares. Subscriber ~~represents~~ acknowledges that the Placement Agent (as defined below) and ~~warrants it is relying exclusively on~~ its ~~own sources of information~~respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ 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 ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer~~Shares, ~~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~~ (aii) ~~each~~ none of the Placement Agents ~~is acting solely as placement agent~~ or any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and ~~is not acting as an underwriter or in any other capacity~~ sale of the Shares and (iii) in connection with the ~~Subscriptions~~ issue and ~~is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with~~ purchase of the ~~Transactions~~Shares, ~~(b)~~ none of the Placement Agents ~~have not made and will not make any representation~~ has acted as the Subscriber’s financial advisor 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 Transactionsfiduciary. ~~2.1.10~~ 2.1.12 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the ~~Issuer~~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 ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~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~~ it has not become aware of this offering (i) ~~were not offered~~ by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act and~~ Act, or (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. ~~2.1.11~~ 2.1.13 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). 2.1.14 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 2.1.15 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. ~~2.1.12~~ 2.1.16 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~~ 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 ~~List~~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~~ 515, or (~~iii~~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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 ~~List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 2.1.17 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 ~~Similar Laws~~ 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 ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Isleworth Healthcare Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares and Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), ) or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber ~~(i)~~ is ~~(a) 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 of 1933, as amended (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 IA, (ii) is acquiring the ~~Subscribed~~ Shares and Warrants only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed~~ Shares or Warrants 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, 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 (iii) is not acquiring the ~~Subscribed~~ Shares or 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Shares or Warrants. 2.1.5 Subscriber understands that the ~~Subscribed~~ Shares and Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed~~ Shares and Warrants have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ Shares and Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing the ~~Subscribed~~ Shares or Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Shares or Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Shares and Warrants 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 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~~Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares and Warrants directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ Shares and 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Shares and Warrants, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Subscriber ~~and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber~~ represents that it has ~~not relied on any statements~~ reviewed presentations or other ~~information provided by anyone~~ marketing materials (~~including Credit Suisse Securities (USA) LLC~~each, ~~▇.▇. ▇▇▇▇▇▇ Securities LLC~~ together with amendments or supplements thereto, a “Memorandum” and ~~BofA Securities, Inc. (~~collectively~~, in their capacity as placement agents~~, the “~~Placement Agents~~Memoranda”~~)), other than~~ ) describing the ~~Issuer and~~ Company (including the ~~SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale~~ business of the ~~Subscribed Shares. Subscriber~~ Seller) and acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares~~Shares and Warrants, including with respect to the ~~Issuer, Paysafe, the SPAC~~ Company and the ~~Transactions~~Transaction. 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 visit Seller’s mine site, 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 ~~Subscribed Shares. Subscriber represents~~ Shares and ~~warrants it~~ Warrants and no statement of printed material which is ~~relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect~~ contrary to the ~~Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ Memoranda has been made or given to Subscriber by or on behalf of the ~~Issuer, Paysafe, and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters~~Company. 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 and Warrants solely by means of direct contact from BMO Capital Markets Corp., as placement agent (the “Placement Agent”), or directly from the Company as a result of a pre-existing, substantive relationship with the Company, and the Shares and Warrants were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Shares and Warrants, nor were the ~~Subscribed~~ Shares and Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed~~ Shares and Warrants (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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, including, without limitation, the Placement Agent, 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 and 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 and Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and Warrants and determined that the Shares and 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 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 ~~Subscribed~~ Shares or Warrants or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares and Warrants were legally derived. ~~2.1.13 If~~ 2.1.14 Subscriber ~~is an employee benefit plan~~ has, and at the Closing will have, sufficient funds to pay the applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents 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 no disqualifying event 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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)(2Rule 506(d)(1)(i-viii) of the Securities ~~Exchange~~ Act ~~of 1934, as amended~~ (~~the~~ a “~~Exchange Act~~Disqualification Event”), ) is applicable to Subscriber or any ~~successor provision~~of its Rule 506(d) acting for the purpose of acquiring, holding or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a foreign person 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 ~~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 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 beneficial owner of Subscriber’s securities for purposes of Rule 506(d) 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) and that will acquire a substantial in~~Securities Act.

Appears in 1 contract

Sources: Subscription/Backstop Agreement (Mudrick Capital Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Convertible Notes to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, ~~Subscriber~~ and has been duly formed or incorporated and is validly existing 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~~ 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 ~~other parties hereto~~Issuer, the Guarantor, Holdings and Music, this Convertible Note Subscription Agreement is constitutes the valid and binding ~~obligation~~ agreement of 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 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Convertible Note Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” within the meaning of Rule 501(a) 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), (ii) is acquiring the ~~Subscribed Shares~~ Convertible Notes only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 account and (iii) is not acquiring the ~~Subscribed 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 following the signature page hereto)~~Act. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Convertible Notes. 2.1.5 Subscriber understands that the ~~Subscribed Shares~~ Convertible Notes are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Convertible Notes have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Convertible Notes may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed Shares~~ Convertible Notes shall contain a legend to such 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 Acteffect. Subscriber understands and agrees that the ~~Subscribed Shares~~ Convertible Notes will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Convertible Notes and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Convertible Notes 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 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 SharesConvertible Notes. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Convertible Notes directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Guarantor, Holdings, Music or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Convertible Note Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed Shares~~ 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Convertible Notes, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed Shares~~ Convertible Notes or the offer and sale of the ~~Subscribed Shares~~Convertible Notes, and Holdings concerning the Guarantor. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares~~Convertible Notes, including with respect to the Issuer, ~~Paysafe~~the Guarantor, ~~the SPAC~~ Holdings, Music and the 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 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 mattersConvertible Notes. 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~~ Convertible Notes solely by means of direct contact between Subscriber and the ~~Issuer~~Issuer or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representative, and the ~~SPAC~~ Convertible Notes were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~its representative. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Convertible Notes, nor were the ~~Subscribed Shares~~ Convertible Notes offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer represents and warrants that the Subscribed Shares~~ Convertible Notes (i) were not offered by any form of general 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, 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 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 Convertible Notes, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 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~~ Convertible Notes or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Convertible Notes. ~~2.1.12~~ 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 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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Convertible Notes were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 none of the Issuer, the ~~SPAC~~ Guarantor nor any 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~~Convertible Notes, 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~~Convertible Notes. ~~2.1.14~~ 2.1.15 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~~Issuer’s ~~common stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ 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~~ 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 ~~substantial in~~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 the Issuer to issue the Subscribed ~~Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (ii) is acquiring the Subscribed Shares only for its own account 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 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 account and (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the Subscribed Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ Magnet, Merger Sub or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or the SPAC~~ or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, ~~Paysafe, the SPAC~~ Magnet and the 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 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 or its representative. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or its representative, and the ~~SPAC~~ Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~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 by any form of general solicitation or general advertising, including methods described in 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, 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 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ 2.1.15 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~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ 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~~ not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a ~~substantial in~~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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 the valid and binding agreement of the ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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~~ (as described in Rule ~~501(a~~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, (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, 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, 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 account and (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~Subscribed~~ 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 ~~Subscribed~~ Shares have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ 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 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 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 representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided~~ effect. Subscriber acknowledges and agrees that ~~such legends~~ the Shares will not immediately 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~~ 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 ~~Subscribed~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Lucid, the ~~SPAC~~ Placement Agents or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 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 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 ~~other federal~~similar law. 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., ~~state~~Citigroup Global Markets Inc. or their respective affiliates (together, ~~local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or~~ the ~~Code (collectively,~~ “~~Similar Laws~~Placement Agents”)~~. 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 representations, warranties and covenants ~~of the Issuer~~ set forth in this Agreement and the ~~SPAC contained in this Subscription Agreement~~independent investigation made by Subscriber. 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 and the SPAC and their respective representatives~~ Agents or Lucid concerning the ~~Issuer or the SPAC or the Subscribed Shares~~ Issuer, Lucid or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber ~~has received such~~ had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe, the SPAC~~ Lucid and the ~~Transactions~~Transactions except that the Subscriber specifically acknowledges that it has 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 decision to purchase the Shares. 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 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~~ has made its own ~~sources of information, investment analysis~~ assessment 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 has satisfied itself concerning the ~~Issuer, Paysafe,~~ relevant tax and other economic considerations relevant to its investment in 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 TransactionsShares. 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 or its representative (including the ~~SPAC or one of their respective representatives~~Placement Agents). 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 by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ state securities laws. 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 has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Without limiting the representations, warranties and covenants set forth in this Agreement, alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 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~~bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ 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 ~~United States Securities and Exchange~~ Commission ~~(the “Commission”)~~ with respect to the beneficial ownership of the ~~SPAC~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) ~~and that~~ will acquire a substantial ininterest (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 the Issuer to issue the Subscribed ~~Shares~~Securities, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ capacity to enter into, 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 ~~other parties hereto~~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. ~~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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~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 “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) ~~and~~ 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~~Securities, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed ~~Shares~~ Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed ~~Shares~~ 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 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~~ Securities in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed ~~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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed ~~Shares~~Securities. ~~2.1.5~~ 2.1.5. Subscriber understands that the Subscribed ~~Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed ~~Shares~~ Securities have not been registered under the Securities Act. Subscriber understands that the Subscribed ~~Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing~~ the Subscribed ~~Shares~~ Securities shall ~~contain~~ be subject to a legend to such 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 ~~the relevant resale~~ any provisions of ~~Rule 144~~the Securities Act). Subscriber acknowledges that the Subscribed ~~Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed ~~Shares~~ Securities will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the Subscribed ~~Shares~~ Securities and may be required to bear the financial risk of an investment in the Subscribed ~~Shares~~ 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 or transfer of any of the Subscribed ~~Shares~~Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that ~~its purchase of~~ the Subscribed ~~Shares~~ Securities are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed ~~Shares~~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 Subscribed ~~Shares~~ Securities directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406~~ 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 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 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~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the~~ Subscribed ~~Shares~~ Securities or the offer and sale of the Subscribed ~~Shares~~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 Subscribed ~~Shares~~Securities, including with respect to the Issuer~~, Paysafe, the SPAC and the 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 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~~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 ~~Transactions, the~~ Subscribed ~~Shares~~ Securities 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 2.1.9. Subscriber became aware of this offering of the Subscribed ~~Shares~~ Securities solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed ~~Shares~~Securities, nor were the Subscribed ~~Shares~~ Securities offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed ~~Shares (i)~~ Securities were not offered by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.10. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed ~~Shares~~ Securities or made any findings or determination as to the fairness of an investment in the Subscribed ~~Shares~~Securities. ~~2.1.12~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed ~~Shares~~ Securities were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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~~Securities, 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~~Securities. ~~2.1.14~~ 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 ~~SPAC~~Issuer’s ~~common stock~~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 the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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 ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 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 ~~other parties hereto~~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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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) 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, (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, ” 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 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 account and (iii) 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 following the signature page hereto). Subscriber ~~is not an entity formed for~~ acknowledges that the ~~specific purpose of acquiring~~ offering meets the ~~Subscribed Shares.~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 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 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 ~~other 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”)~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the ~~Transactions~~Transactions and 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 ~~(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 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~~ acknowledges that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources~~ respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of ~~information, investment analysis~~ the Shares and ~~due diligence (including professional advice you deem appropriate)~~ have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ Company or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Issuer or the Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 Agent or any of the ~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~Placement Agent’s affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, 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~~ information related 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)~~Company, ~~whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ the Shares and the offer and sale of the ~~Transactions.~~Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agent or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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. 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 the exemptions from filing under FINRA Rule 5123(b)(1) 2.1.11 Alone, or together with any professional advisor(s), 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 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.. ~~2.1.12~~ 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~~ 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 ~~List~~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 ~~person~~ citizen, national, or ~~entity prohibited~~ 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 ~~any OFAC sanctions program~~the United States, (iiiv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~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. If 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 ~~represents that 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 List~~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 ~~Subscribed~~ Shares were legally derived.. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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.. ~~2.1.14~~ 2.1.15 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~~Company’s common ~~stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).. ~~2.1.15 Subscriber is not a~~ 2.1.16 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) ~~and that~~ will acquire a substantial ininterest 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 ~~the Issuer~~ PubCo to issue the ~~Subscribed Shares~~Securities, to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer~~ SPAC and ~~the SPAC~~ PubCo and acknowledges and agrees with ~~the Issuer~~ SPAC and ~~the SPAC~~PubCo, as of the date hereof and as of the ~~Closing Date~~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 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 other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (i) is ~~(a)~~ 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) 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, (ii) is acquiring the ~~Subscribed Shares~~ Securities 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,~~ 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 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 account and (iii) is not acquiring the ~~Subscribed 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands that the ~~Subscribed 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 ~~Subscribed Shares~~ Securities have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that (A) the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to ~~the Issuer~~ 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 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 ~~Subscribed Shares~~ Securities shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing restrictions and, as a ~~result~~result of these restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from ~~the Issuer~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by ~~the Issuer~~PubCo, the SPAC 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 ~~represents and warrants~~ is an employee benefit plan that ~~its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406~~ 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 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to ~~purchase~~ acquire the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the~~ PubCo’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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~~other than PubCo concerning SPAC, the ~~“Placement Agents”))~~Company, ~~other than the Issuer and the SPAC and their respective representatives concerning the Issuer~~ PubCo or the ~~SPAC or the Subscribed Shares~~ Securities or the offer and sale of the ~~Subscribed Shares~~Securities. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Securities (including with respect to the ~~Issuer, Paysafe~~Company, the ~~SPAC~~ SPAC, PubCo and the 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 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 ~~(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 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~~Securities. Subscriber ~~represents~~ acknowledges that ▇▇▇▇▇▇▇▇▇ LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources of information~~directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company, ~~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~~ PubCo or the Securities or the accuracy, completeness or adequacy of any information supplied to ~~all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ the Subscriber by the Company or the SPAC. Subscriber acknowledges ~~and agrees~~ that (a) ~~each~~ it has not relied on any statements or other information provided by the Placement Agent or any of the Placement ~~Agents is acting solely as placement agent~~ 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 ~~Transactions~~ offer and ~~is not acting as an underwriter or in any other capacity in connection with~~ sale of the ~~Subscriptions~~ Securities, 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~~ Agent shall not 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 the Subscriber, ~~the Issuer~~PubCo, the ~~SPAC~~ 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 ~~Subscribed Shares~~ Securities solely by means of direct contact from either the Placement Agent, the SPAC, or the Company as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the SPAC or the Company or their respective representatives (including the Placement Agent), and the Securities were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~Placement Agent, the ~~SPAC~~ SPAC, or ~~one of their respective representatives~~the Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, or any ~~applicable~~ state securities laws. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the investment in the 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 Securities, and 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 the acquisition of the 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). 2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Securities. ~~2.1.12~~ 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program~~program or the U.S. Department of State, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515~~ 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 ini

Appears in 1 contract

Sources: Subscription Agreement (Haymaker Acquisition Corp. 4)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~the SPAC and acknowledges~~ ProSomnus and agrees with the ~~Issuer~~ Company and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA, (ii) is acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account 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 ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I following the signature page hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~respect~~ 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 ~~Issuer, Paysafe, the SPAC and the Transactions~~Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its 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~~ the Company’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, 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~~ that any changes to the ~~Transactions~~information contained in the Disclosure Documents, ~~the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ including any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters~~relying upon any projections contained in the Investor Presentation. 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~~ Securities solely (a) by means of direct contact from the Company, ProSomnus, or a representative of the Company or ProSomnus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer, the SPAC~~ Company or ~~one of their respective representatives~~ProSomnus. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 Securities, and 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 the investment in the Securities, has analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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”), ~~Subscriber represents~~ that it 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If~~ 2.1.14 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 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is ~~an employee benefit plan~~ 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 ~~subject to Title I~~ applicable. For purposes of ~~ERISA~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a ~~plan, an individual retirement account~~ person or ~~other arrangement that is subject to section 4975 of the Code or an employee benefit plan~~ 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) 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 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 SharesCompany. ~~2.1.14~~ 2.1.17 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~~Company’s ~~common stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) and that will acquire a substantial inpe

Appears in 1 contract

Sources: Subscription Agreement (ProSomnus, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the~~ each Issuer to issue the applicable Subscribed Shares, Subscriber hereby represents and warrants to ~~the~~ each Issuer ~~and the SPAC~~ and acknowledges and agrees with ~~the Issuer and the SPAC~~Issuer, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1 If Subscriber is not an individual,~~ 4.1.1. Subscriber has been duly formed or incorporated and is validly existing 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~~ 4.1.2. 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 other parties hereto~~each 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. ~~2.1.3~~ 4.1.3. 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~2.1.4~~ 4.1.4. Subscriber (i) is (a) 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, (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 IB, (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, 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, 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 (iii) 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 B following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 4.1.5. 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the Subscribed Shares shall contain a legend to such 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, 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inthe

Appears in 1 contract

Sources: Subscription Agreement (Virgin Group Acquisition Corp. II)

Appears in 1 contract

Sources: Subscription Agreement (Mirion Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Issuer to issue the Subscribed Shares,~~ Subscriber hereby represents and warrants ~~to the Issuer and the SPAC and acknowledges and agrees with the Issuer and the SPAC, as of the date hereof and as of the Closing Date, 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 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 and perform its obligations under this Subscription Agreement. , and (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. (b) If Subscriber is ~~an individual~~a natural person, (i) Subscriber has ~~the~~ all requisite power and 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~~ (ii) Subscriber~~. If Subscriber is an individual, the~~ ’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 ~~other parties hereto~~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) applicable 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~~ (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 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~~ subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or or, if applicable, any of its subsidiaries is a party or by which Subscriber or or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries is subject, which would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~legal authority~~ business, properties or financial condition of Subscriber, or, if applicable, the stockholders’ equity or results of operations of Subscriber ~~to enter into and timely perform~~ or, if applicable, any of its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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 ~~or any of its subsidiaries~~ if Subscriber is not a natural person, 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 or, if applicable, any of its subsidiaries or any of their respective properties that would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4~~ (e) Subscriber is (i) is an accredited investor, satisfying the applicable requirements set forth on Schedule A, (aii) ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “~~accredited investor~~Institutional Account” ~~within the meaning of Rule 501(a) under the Securities Act, (b) an Institutional Account~~ as defined in FINRA Rule 4512(c) and (ciii) ~~a sophisticated institutional investor,~~ experienced in investing in private equity transactions ~~of the type contemplated by this Subscription Agreement~~ and capable of evaluating investment risks independently, both in general and in connection with ~~regard to all transactions and investment strategies involving a security or securities, including Subscriber’s~~ its participation in the ~~purchase of~~ Offering. Subscriber represents that it is purchasing its entire beneficial ownership interest in the ~~Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed~~ Acquired 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, 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, ) for investment purposes ~~only~~ and not with a view to ~~any~~ the distribution thereof in violation of ~~the Subscribed Shares in any manner that would violate~~ the securities laws of the United States or any other ~~applicable jurisdiction and~~ jurisdiction, provided, that (~~iii) is not acquiring~~ subject to the ~~Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation~~ securities laws of the ~~Securities Act (and~~ United States or any other jurisdiction) disposition of Subscriber’s property shall ~~provide the requested information on Schedule I following the signature page hereto)~~at all times be within Subscriber’s control. ~~Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5~~ Subscriber understands that (1) the ~~Subscribed~~ Acquired Shares ~~are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares~~ (A) have not been registered under the ~~Securities Act. Subscriber understands that the Subscribed 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 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~~ 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 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 cases (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 representing the Subscribed Shares shall contain a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)this Subscription Agreement. 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~~ Acquired Shares will be subject to ~~the foregoing~~ transfer restrictions ~~and,~~ as a 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 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in on Exhibit A to this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 (USAf) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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~~ provided, that Subscriber is permitted to do so under applicable law. If 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”), ~~Subscriber represents~~ that it 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 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 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 ~~Subscribed~~ Acquired Shares were legally derived. ~~2.1.13~~ (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 these transfer 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 or transfer of any of the Acquired Shares. (i) Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from the Issuer. Subscriber further acknowledges that (i) there have been no, and will be no, representations, warranties, 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, the Agent, the Company, the Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective Representatives, expressly or by implication, other than those representations, warranties, 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 with respect to (x) 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) thereof, or (y) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. (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 Acquired Shares, in each case, based on such information as such Subscriber has deemed appropriate and without reliance upon the Agent or any of Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received 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, the Transactions, the Company, the Charterhouse Parties and their respective affiliates and Representatives. Subscriber represents and warrants that Subscriber and Subscriber’s professional advisor(s), if any, (i) were given the opportunity to ask questions and receive answers concerning the terms and conditions of the Subscription, the Issuer, the Company, the Charterhouse Parties and to obtain any additional information which the Issuer possessed or could acquire without unreasonable effort or expense and (ii) received, reviewed and understood the offering materials made available to it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the 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. (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a placement agent for the Issuer (together with its affiliates and any of its or 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 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 by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D 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, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. (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 and tax advice as Subscriber has considered necessary to make an informed investment decision. (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that Subscriber has, alone, or together with any professional advisor(s), 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 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. (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. (o) 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”), (ii) a plan, an individual retirement account or other arrangement that is subject to ~~section~~ 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 Similar Laws or~~ 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, a an “ERISA Plan”), ~~Subscriber represents and warrants~~ or (iv) an employee benefit plan that none of the Issuer, the SPAC nor any 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. 2.1.14 Except as expressly disclosed in is 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a 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 ERISA), a ~~single foreign state have a substantial interest~~ church plan (as defined in ~~31 C.F.R. Part 800.244~~Section 3(33) ~~and~~ of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that ~~will acquire a substantial in~~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. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”, an

Appears in 1 contract

Sources: Subscription Agreement (GS Acquisition Holdings Corp II)

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Issuer to issue the Subscribed Shares,~~ Subscriber hereby represents and warrants ~~to the Issuer and the SPAC and acknowledges and agrees with the Issuer and the SPAC, as of the date hereof and as of the Closing Date, 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 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 and perform its obligations under this Subscription Agreement. , and (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. (b) If Subscriber is ~~an individual~~a natural person, (i) Subscriber has ~~the~~ all requisite power and 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~~ (ii) Subscriber~~. If Subscriber is an individual, the~~ ’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 ~~other parties hereto~~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) applicable 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~~ (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 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~~ subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or or, if applicable, any of its subsidiaries is a party or by which Subscriber or or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries is subject, which would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~legal authority~~ business, properties or financial condition of Subscriber, or, if applicable, the stockholders’ equity or results of operations of Subscriber ~~to enter into and timely perform~~ or, if applicable, any of its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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 ~~or any of its subsidiaries~~ if Subscriber is not a natural person, 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 or, if applicable, any of its subsidiaries or any of their respective properties that would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4~~ (e) Subscriber is (i) ~~is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor~~” within~~ , satisfying the ~~meaning of Rule 501(a) under the Securities Act~~applicable requirements set forth on Schedule A, (bii) ~~an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor,~~ experienced in investing in private equity transactions ~~of the type contemplated by this Subscription Agreement~~ and capable of evaluating investment risks independently, both in general and in connection with ~~regard to all transactions and investment strategies involving a security or securities, including Subscriber’s~~ its participation in the ~~purchase of~~ Offering. Subscriber represents that it is purchasing its entire beneficial ownership interest in the ~~Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed~~ Acquired 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, 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, ) for investment purposes ~~only~~ and not with a view to ~~any~~ the distribution thereof in violation of ~~the Subscribed Shares in any manner that would violate~~ the securities laws of the United States or any other ~~applicable jurisdiction and~~ jurisdiction, provided, that (~~iii) is not acquiring~~ subject to the ~~Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation~~ securities laws of the ~~Securities Act (and~~ United States or any other jurisdiction) disposition of Subscriber’s property shall ~~provide the requested information on Schedule I following the signature page hereto)~~at all times be within Subscriber’s control. ~~Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. 2.1.5~~ Subscriber understands that (1) the ~~Subscribed~~ Acquired Shares ~~are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares~~ (A) have not been registered under the ~~Securities Act. Subscriber understands that the Subscribed 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 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~~ 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 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 cases (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 representing the Subscribed Shares shall contain a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)this Subscription Agreement. 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~~ Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement. For the ~~foregoing restrictions and~~avoidance of doubt, ~~as a result,~~ the Issuer acknowledges that Subscriber ~~may not be able to readily resell~~ was formed for the ~~Subscribed~~ purpose of subscribing for the Acquired Shares and ~~may~~ 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 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 or transfer a breach 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 representations or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or other agreements made to Subscriber by the Issuer, the SPAC or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this ~~Subscription Agreement. 2.1.7 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 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 other 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”5(e). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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~~f) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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~~ provided, that Subscriber is permitted to do so under applicable law. If 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”), ~~Subscriber represents~~ that it 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 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 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 ~~Subscribed~~ Acquired Shares were legally derived. ~~2.1.13~~ (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 these transfer 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 or transfer of any of the Acquired Shares. (i) Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from the Issuer. Subscriber further acknowledges that (i) there have been no, and will be no, representations, warranties, 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, the Agent, the Company, the Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective Representatives, expressly or by implication, other than those representations, warranties, 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 with respect to (x) 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) thereof, or (y) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. (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 Acquired Shares, in each case, based on such information as such Subscriber has deemed appropriate and without reliance upon the Agent or any of Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received 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, the Transactions, the Company, the Charterhouse Parties and their respective affiliates and Representatives. Subscriber represents and warrants that Subscriber and Subscriber’s professional advisor(s), if any, (i) were given the opportunity to ask questions and receive answers concerning the terms and conditions of the Subscription, the Issuer, the Company, the Charterhouse Parties and to obtain any additional information which the Issuer possessed or could acquire without unreasonable effort or expense and (ii) received, reviewed and understood the offering materials made available to it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the 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. (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a placement agent for the Issuer (together with its affiliates and any of its or 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 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 by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D 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, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. (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 and tax advice as Subscriber has considered necessary to make an informed investment decision. (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that Subscriber has, alone, or together with any professional advisor(s), 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 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. (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. (o) 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”), (ii) a plan, an individual retirement account or other arrangement that is subject to ~~section~~ 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 Similar Laws or~~ 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, a an “ERISA Plan”), ~~Subscriber represents and warrants~~ or (iv) an employee benefit plan that none of the Issuer, the SPAC nor any 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. 2.1.14 Except as expressly disclosed in is 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a 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 ERISA), a ~~single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial in~~church

Appears in 1 contract

Sources: Assignment and Subscription Agreement (GSAM Holdings LLC)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~the SPAC and acknowledges~~ Pubco and agrees with the ~~Issuer~~ Company and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ Pubco as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA, (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,~~ 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, 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 (iii) 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 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, except (i)~~ Act with respect to the ~~Issuer~~ 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 cases (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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further~~ acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or Pubco or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to 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 ~~Subscribed Shares~~Shares and made its own assessment and is satisfied concerning the relevant tax, ~~including with respect~~ legal and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 ~~(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 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 ~~Subscribed~~ Shares. The Subscriber ~~represents~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of R▇▇▇ Capital Partners, LLC, C▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC or O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (collectively, the “Placement Agents”) and ~~warrants it is relying exclusively on its own sources of information~~that the Placement Agents and their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscribed Shares and~~ Subscriber by 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 Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Shares and the ~~Transactions~~offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and ~~(d) the Placement Agents shall have no liability or obligation (including~~ that any changes to such information, including, without limitation, ~~for~~ any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely (a) by means of direct contact from the Placement Agents or (b) directly from the Company as a result of a pre-exiting, substantial relationship with the Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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 Shareshas, and ~~none of~~ at 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. 2.1.14 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~~ have, sufficient available funds to pay the ~~meaning of~~ Purchase Price pursuant to 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ 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 ~~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 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 ~~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 in~~Securities Act.

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition I Co)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Warrant to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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 of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D 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 II hereto, (ii) is acquiring the ~~Subscribed~~ Warrant and the Shares issuable upon exercise of the Warrant (collectively, the “Securities”) only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 account and (iii) is not acquiring the ~~Subscribed 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 ~~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~~ Warrant is being offered in a transaction not involving any public offering within the meaning of the Securities Act and that none of the ~~Subscribed Shares~~ Securities have ~~not~~ been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing any of the ~~Subscribed Shares~~ Securities shall contain a ~~legend~~ legend, or each register for the Securities in book entry form shall contain a notation, to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed 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 ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ 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 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 SharesWarrant. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Warrant directly from 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 or agreements made to Subscriber by the Issuer, ~~the SPAC~~ Supernova, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s acquisition and holding of the ~~Subscribed Shares~~ 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Subscribed Shares~~Warrant, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, warranties and ~~covenants of the Issuer and the SPAC contained in this Subscription Agreement~~agreements herein. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed Shares~~ Warrant or the offer and sale of the ~~Subscribed Shares~~Warrant. 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~~Warrant, including with respect to the Issuer, ~~Paysafe, the SPAC~~ Supernova and the ~~Transactions~~Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~(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 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 mattersSecurities. 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 2.1.9. Subscriber became aware of this offering of the ~~Subscribed Shares~~ Warrant solely by means of direct contact between Subscriber and the Issuer or Supernova or a representative of the Issuer or Supernova. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer, ~~the SPAC~~ Supernova or ~~one of~~ their respective representatives, and the Warrant was offered to Subscriber solely by direct contact between Subscriber and the Issuer or Supernova or a representative of the Issuer or Supernova. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor ~~were~~ was any of the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that none of the ~~Subscribed Shares~~ Securities (i) ~~were~~ was not offered by any form of general 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 2.1.10. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the 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 Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 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 Securities. 2.1.11. Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 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~~ Securities or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Securities. ~~2.1.12 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 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~~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”), ~~Subscriber represents that it~~ 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 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 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 ~~none of~~ it has not relied on the ~~Issuer, the SPAC nor~~ Issuer or any of ~~their respective~~ its affiliates (the “~~Transaction~~ Acquisition Parties”) ~~has acted~~ for investment advice as the Plan’s ~~fiduciary, or has been relied on for advice,~~ fiduciary with respect to its decision to acquire and hold the ~~Subscribed Shares~~Securities, and none of the ~~Transaction~~ Acquisition 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~~Securities. 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)2.1.15. [Reserved.] ~~2.1.15 Subscriber is not a~~ 2.1.16. 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) ~~and that~~ will acquire a substantial ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to each of the Cayman Issuer and ~~the SPAC~~ New Pubco and acknowledges and agrees with the Cayman Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ New Pubco as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 each of the ~~other parties hereto~~Cayman Issuer, New Pubco, the Seller Representative and FoA, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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, 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, 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 account and (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Cayman Issuer, New Pubco, the ~~SPAC~~ Seller Representative, FoA or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 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 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 other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 Cayman Issuer and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Cayman Issuer, ~~Paysafe~~New Pubco, the ~~SPAC~~ Seller Representative, FoA and the 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 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 ~~Subscribed~~ Shares. , and Subscriber ~~represents and warrants it is relying exclusively on~~ has made its own ~~sources of information, investment analysis~~ assessment and ~~due diligence (including professional advice you deem appropriate) with respect~~ satisfied itself concerning the relevant tax and other economic considerations relevant 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 mattersits Subscription. 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~~Cayman Issuer or its representatives. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Cayman Issuer or its representative, and the ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Cayman Issuer or ~~one of their respective~~ its 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 Cayman Issuer represents and warrants that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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. 2.1.11 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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 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~~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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 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 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 the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code (collectively, “Similar ~~Laws~~ 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 or arrangement~~ (~~each~~ii) and (iii) (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~none of the~~ (x) neither Cayman Issuer, ~~the SPAC~~ 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 its decision to acquire ~~and~~ or 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~~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. ~~2.1.14~~ 2.1.15 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~~Cayman Issuer’s ~~common stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 2.1.16 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) ~~and that~~ will acquire a substantial ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 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 ~~other parties hereto~~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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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) 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, (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, ” 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 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 account and (iii) 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 following the signature page hereto). Subscriber ~~is not an entity formed for~~ acknowledges that the ~~specific purpose of acquiring~~ offering meets the ~~Subscribed Shares~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 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 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 ~~other 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”)~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the ~~Transactions~~Transactions and 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 ~~(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 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~~ acknowledges that M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources~~ respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of ~~information, investment analysis~~ the Shares and ~~due diligence (including professional advice you deem appropriate)~~ have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ Company or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Issuer or the Company. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 Agent or any of the ~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~Placement Agent’s affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, 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~~ information related 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)~~Company, ~~whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ the Shares and the offer and sale of the ~~Transactions~~Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agent or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, 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. 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 the exemptions from filing under FINRA Rule 5123(b)(1) 2.1.11 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12~~ 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~~ 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 ~~List~~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 ~~person~~ citizen, national, or ~~entity prohibited~~ 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 ~~any OFAC sanctions program~~the United States, (iiiv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~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. If 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 ~~represents that 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 List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ 2.1.15 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~~Company’s common ~~stock~~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 or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 2.1.16 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) ~~and that~~ will acquire a substantial ininterest 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.)

Appears in 1 contract

Sources: Sponsor Subscription Agreement

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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 (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors 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 (ic) ~~conflict with or~~ if Subscriber is not an individual, result in ~~a breach or~~ any violation of ~~any~~ the provisions of the ~~terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets~~ organizational documents of Subscriber or any of its subsidiaries ~~pursuant to the terms~~ or (d) result in any violation of any ~~indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber~~ statute or any judgment, order, rule or regulation of ~~its subsidiaries is a party~~ any court or ~~by which~~ governmental agency or body, domestic or foreign, having jurisdiction over 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~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (ie) is (a1) 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, (b2) an Institutional Account as defined in FINRA Rule 4512(c) and (c3) 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, (iib) 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, 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, 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 (~~iii~~c) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (id) to 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 or (~~iii~~f) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of 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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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, 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 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ Springbig, or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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”))anyone, other than the Issuer and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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, ~~Paysafe, the SPAC~~ Springbig and the 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 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,~~ Issuer and ~~the SPAC,~~ Springbig 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 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.10. 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 Subscribed Shares. ~~2.1.12~~ 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 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, (iih) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~i) 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. ~~2.1.14~~ 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 ~~SPAC~~Issuer’s ~~common stock~~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 the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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 ininterest 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. 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” 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.

Appears in 1 contract

Sources: Subscription Agreement (Tuatara Capital Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any court or ~~governmental agency or body~~Governmental Authority, domestic or foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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 of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6), (7) or (9) 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 II hereto, (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, 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, 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 account and (iii) 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 ~~following the signature page~~ hereto). If Subscriber is not an individual, 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from 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 or agreements made to Subscriber by ▇.▇. ▇▇▇▇▇▇ Securities LLC or ▇▇▇▇▇▇▇▇▇ LLC (together, the “Placement Agents”), the Issuer, ~~the SPAC~~ OfferPad, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained in this Subscription Agreement~~agreements herein. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ OfferPad 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. 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 ~~(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 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 (ai) ~~each~~ 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 ~~is acting solely as placement agent~~ nor any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and is 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 ~~acting as an underwriter or in any other capacity in~~ be provided to it. In connection with the ~~Subscriptions~~ issuance of the Shares to Subscriber and ~~is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with~~ the ~~Transactions~~purchase of the Shares by Subscriber, ~~(b)~~ neither of 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 nor any of ~~the documents furnished pursuant thereto~~ their respective affiliates has acted as a financial advisor or ~~in connection therewith, or the execution, legality, validity or enforceability (with respect~~ fiduciary 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) Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have no any liability or any obligation ~~(including without limitation~~to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, ~~for~~ 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 ~~any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber,~~ the Issuer, ~~the SPAC~~ OfferPad or its subsidiaries or any ~~other person or entity), whether in contract, tort or otherwise, to Subscriber~~of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to ~~any person claiming through Subscriber, in respect of~~ the ~~Transactions~~Subscriber by the Issuer. ~~2.1.10~~ 2.1.9. Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the ~~Issuer~~Issuer or its representatives, including the ~~SPAC~~ Placement Agents. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer or ~~one of their respective~~ its representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or its 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 by any form of general 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 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. 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. Alone, or together with any professional advisor(s), 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 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. ~~2.1.12 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 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~~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”), ~~Subscriber represents~~ that it 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 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 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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 ~~none of~~ it has not relied on the ~~Issuer, the SPAC nor~~ Issuer or any of ~~their respective~~ 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inPar

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Units to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to to1 the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), ) or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber ~~(i)~~ is ~~(a) 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 of 1933, as amended (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 IA, (iii) is acquiring the ~~Subscribed Shares~~ Units 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, 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, 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 (~~iii~~ii) is not acquiring the ~~Subscribed 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 A 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~~ Units 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~~ Units may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing the ~~Subscribed~~ Shares and Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Shares and/or Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Shares and Warrants 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 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~~and/or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Units directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ Shares and 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”)~~amended, 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed SharesSubscriber. Subscriber ~~acknowledges and agrees~~ represents that ~~Subscriber~~ it has received 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, Paysafe, the SPAC and the Transactions~~Units. 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 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 mattersUnits. 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, the SPAC or 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. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed Shares~~ Units (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 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 Units, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed Shares~~ Units or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Units were legally derived. ~~2.1.13 If~~ 2.1.14 Subscriber ~~is an employee benefit plan~~ has, and at the Closing will have, sufficient funds to pay the applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents 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 no disqualifying event 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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)(2Rule 506(d)(1)(i-viii) of the Securities ~~Exchange~~ Act ~~of 1934, as amended~~ (~~the~~ a “~~Exchange Act~~Disqualification Event”), ) is applicable to Subscriber or any ~~successor provision~~of its Rule 506(d) acting for the purpose of acquiring, holding or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a foreign person 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 ~~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 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 beneficial owner of Subscriber’s securities for purposes of Rule 506(d) 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) and that will acquire a substantial in~~Securities Act.

Appears in 1 contract

Sources: Subscription Agreement (Hycroft Mining Holding Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ 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 other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 and (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 subsidiaries or any of their respective properties that would reasonably be expected to have 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), 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~~, (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, (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 “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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~~Act (including without limitation a private resale pursuant to so called “Section 4(a)1½”), and in each ~~of cases (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 representing the Subscribed Shares shall contain a legend to such 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, 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 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~~ 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. 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 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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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,~~ Deutsche Bank Securities Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and ~~the SPAC and their~~ its respective representatives concerning the ~~Issuer or~~ Issuer, the ~~SPAC~~ Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, ~~Paysafe,~~ the ~~SPAC~~ Company and the 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 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,~~ Issuer and the ~~SPAC~~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, ~~Paysafe,~~ the ~~SPAC~~ 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, the SPAC~~ 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~~ 2.1.10. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer, the ~~SPAC~~ Company or 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. Subscriber acknowledges that the Issuer ~~represents~~ will represent and ~~warrants~~ warrant that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. ~~2.1.11~~ 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.12~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Sports Ventures Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC~~Company, as of the date hereof and as of the ~~Closing Date~~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 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 other parties hereto, then this Subscription Agreement ~~is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (i) is ~~(a)~~ a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) 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, (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,~~ 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 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 account and (iii) 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 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 or any other applicable securities laws, and that the ~~Subscribed~~ Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands that (A) the ~~Subscribed~~ 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 the ~~Issuer~~ 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 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer~~Company, the SPAC 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 ~~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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to ~~purchase~~ acquire the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 and the SPAC and their respective representatives~~ Company concerning the ~~Issuer~~ Company or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to the ~~Issuer, Paysafe~~Company, the ~~SPAC~~ SPAC, Holdco and the 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 ~~(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 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~~ acknowledges that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated (the “Placement Agent”) and ~~warrants it is relying exclusively on~~ its ~~own sources of information~~directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company, ~~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~~ Holdco or the Shares or the accuracy, completeness or adequacy of any information supplied to ~~all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ the Subscriber by the Company or the SPAC. Subscriber acknowledges ~~and agrees~~ that (a) ~~each~~ it has not relied on any statements or other information provided by the Placement Agent or any of the Placement ~~Agents is acting solely as placement agent~~ 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 ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability~~ that any changes to such information, including any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to acquire the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Company as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Company or its representatives (including the Placement Agent), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, or any ~~applicable~~ state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that the 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 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program, (ii) a Designated National as defined in~~ program or 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~~Department of State. 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. If 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 ~~represents that it~~ 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 for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ 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 ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 none of the ~~Issuer~~Company, ~~the SPAC nor~~ Holdco or any of their respective ~~affiliates~~ Affiliates (collectively, 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. 2.1.14 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, 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 or disposing of equity securities of the ~~Issuer~~ Company or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 If 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~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) ~~and that~~ 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 ~~a substantial in~~control (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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 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 this~~ This Subscription Agreement constitutes ~~the valid and binding agreement of the other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with the terms of this Subscription Agreement. 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) 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 IA, (ii) is acquiring the ~~Subscribed Shares~~ Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 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 (iii) is not acquiring the ~~Subscribed 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 following the signature page~~ A hereto). Nothing contained herein shall be deemed a representation or warranty by such Subscriber to hold the Securities for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by or on behalf of the ~~Issuer~~Company, ▇▇▇▇▇ and Company, LLC (the ~~SPAC~~ “Placement Agent”), or any of their respective ~~officers~~ directors, officers, employees, agents, representatives, affiliates or ~~directors~~controlling persons of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended, or (ii) its acquisition and holding of the ~~Subscribed Shares~~ 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Sharesagreements herein. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares, including with respect~~ Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Issuer, Paysafe, the SPAC and the Transactions~~Securities. 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~~ an 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 ~~Subscribed Shares~~Securities. Subscriber ~~represents~~ acknowledges that no disclosure or any information received by Subscriber has been prepared by the Placement Agent and ~~warrants it is relying exclusively on~~ that the Placement Agent and its ~~own sources of information~~directors, ~~investment analysis~~ officers, employees, agents, representatives, affiliates and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Securities or the accuracy, completeness or adequacy of any information supplied to Subscriber by the ~~Subscribed Shares~~ Company and Subscriber is not relying upon any such investigation by 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 Placement Agent. Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 Agent or any of the ~~documents furnished pursuant thereto or in connection therewith~~Placement Agent’s directors, ~~or the execution~~officers, ~~legality~~employees, ~~validity or enforceability (~~agents, representatives, affiliates and controlling persons with respect to ~~any person) or any thereof~~its decision to invest in the Securities, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Securities and the ~~Transactions,~~ offer 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 sale of the ~~Transactions~~Securities. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely by means of direct contact between Subscriber and the ~~Issuer~~Placement Agent or the Company (or a representative of the Company or Placement Agent) as a result of a pre-existing, substantial relationship with the ~~SPAC~~ Company or ~~one~~ Placement Agent, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Placement Agent or the Company (or a representative of ~~their respective representatives~~the Company or Placement Agent). Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer represents and warrants that~~ Placement Agent has not acted as its financial advisor or fiduciary in connection with the ~~Subscribed Shares~~ Subscription or any matter under this Subscription Agreement. Subscriber acknowledges that, to Subscriber’s knowledge, the Securities (i) were not offered to it by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects,~~ are not being offered to it in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the 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 Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and ~~agrees~~ 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 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 Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), 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 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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, directly or indirectly through a third-party administrator, Subscriber ~~represents that 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 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, 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If~~ 2.1.14 On the date the Purchase Price would 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 Subscriber represents that, if it is ~~an employee benefit plan that is subject to Title I of ERISA,~~ a ~~plan, an individual retirement account~~ person or ~~other arrangement that is subject to section 4975~~ entity described in Section 506(d)(1) of the ~~Code~~ Securities Act, 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 that is a governmental plan~~ any of its Rule 506(d) Related Parties (as defined ~~in section 3(32) of ERISA~~below), except, if applicable, for a ~~church plan (~~Disqualification Event as ~~defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA~~to which Rule 506(d)(2)(ii) or ~~other plan that~~ (iii) or (d)(3) is not subject to the foregoing but may be subject to provisions under any other Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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 Sharesapplicable. ~~2.1.14~~ 2.1.16 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~~Company’s ~~common stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15 Subscriber is not a~~ 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) ~~and that~~ will acquire a substantial ininterest in the Company as a result of the purchase by such Subscriber and sale of the Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.

Appears in 1 contract

Sources: Subscription Agreement (Lifesci Acquisition II Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company and Sponsor to ~~issue the Subscribed Shares~~enter into this Subscription Agreement, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and ~~the SPAC and acknowledges~~ Sponsor and agrees with the ~~Issuer~~ Company and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA, (ii) is acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account and not for the account of others, or if the Subscriber is subscribing for the ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I following the signature page 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 ~~Subscribed 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 ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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 ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~respect~~ 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 ~~Issuer, Paysafe, the SPAC and the Transactions~~Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its 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~~ the Company’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, 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~~ that any changes to the ~~Transactions~~information contained in the Disclosure Documents, ~~the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ including any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ relying upon any projections contained in the Investor Presentation or any SEC Document. Subscriber acknowledges and agrees that (ai) ~~each~~ 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 ~~Agents~~ 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 ~~acting solely as placement agent~~ 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 ~~Transactions~~ 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 ~~acting as an underwriter~~ be provided to it. Subscriber (i) agrees the Placement Agent shall not be liable to Subscriber or in its affiliates for any ~~other capacity~~ action heretofore or hereafter taken or omitted to be taken by it 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 Subscriber’s purchase 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~~ Securities and (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)~~ releases the Placement ~~Agents shall have no liability or obligation (including without limitation, for or with~~ Agent in respect to of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements ~~incurred by Subscriber,~~ related to this Subscription Agreement or 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~~transactions contemplated hereby. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely (a) by means of direct contact from the Placement Agent, the Company, Target or a representative of the Placement Agent, the Company or Target, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ 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 ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 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 Securities, and 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 (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 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). 2.1.12 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 analyzed and fully considered the risks of an investment in the 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 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. 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 ino

Appears in 1 contract

Sources: Subscription Agreement (ROC Energy Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ PubCo to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer and~~ each of the SPAC and ~~acknowledges~~ the PubCo and agrees with the ~~Issuer~~ SPAC and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA attached hereto, (ii) is acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account 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 ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I following the signature page hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ PubCo or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer~~ SPAC and the ~~SPAC~~ PubCo contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~respect to~~ the ~~Issuer~~Securities and Exchange Commission (the “Commission”) (File ▇▇. ▇▇▇-▇▇▇▇▇▇) (▇▇▇ “▇▇▇▇▇▇▇▇▇▇”), ~~Paysafe~~(▇▇) 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 ~~Transactions~~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 ~~(i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ had the full opportunity to ask ~~such~~ the SPAC’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, and ~~warrants it is relying exclusively~~ that any changes to the information contained in the Disclosure Documents, including any changes based on ~~its own sources~~ updated information or changes in terms of ~~information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to~~ the Transactions, shall in no way affect Subscriber’s obligation to purchase the ~~Subscribed Shares and the business~~Securities hereunder, ~~condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Paysafe~~except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (ai) ~~each~~ it has not relied on any statements or other information provided by Chardan Capital Markets, LLC (the “Placement Agent”) or any of the Placement ~~Agents~~ 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 ~~acting solely as placement agent~~ 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 ~~Transactions~~ offer and is 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 ~~acting as an underwriter~~ be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or ~~in any other capacity~~ hereafter taken or omitted to be taken by it 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 Subscriber’s purchase 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 TransactionsSecurities. ~~2.1.10~~ 2.1.9 Subscriber became aware of this ~~offering~~ Offering of the ~~Subscribed Shares~~ Securities solely (a) by means of direct contact from the Placement Agent, the SPAC, the PubCo, the Target or 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, substantial relationship with the SPAC or the PubCo, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~PubCo. Subscriber did not become aware of this ~~offering~~ Offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the PubCo represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 the investment in the Securities, has analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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”), ~~Subscriber represents~~ that it 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If Subscriber is an employee benefit plan that is subject~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”)Section 3.1, Subscriber ~~represents and warrants that none of~~ will have sufficient immediately available funds to pay the ~~Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect~~ Purchase Price pursuant 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ applicable to Subscriber or any of its Rule 506(d) 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) and that will acquire a substantial inbelow), except, if appl

Appears in 1 contract

Sources: Pipe Subscription Agreement (Caravelle International Group)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer~~ Issuer, RMG II and the ~~SPAC~~ Placement Agents (as defined below) and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ RMG II 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 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 ~~other parties hereto~~Issuer and RMG II, 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ d) 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~~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, (ii) 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”), (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 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, ” 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 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 account and (~~iii~~v) 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 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 ~~is not an entity formed for~~ acknowledges that the ~~specific purpose of acquiring~~ offering meets the ~~Subscribed Shares~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). ~~2.1.5~~ e) Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed~~ 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 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a 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 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~~ f) Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, RMG II, the ~~SPAC~~ Company 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~~ g) 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 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 ~~other 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”)~~law. ~~2.1.8~~ h) In making its decision to purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and RMG II’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 and ~~the SPAC and their respective representatives~~ RMG II concerning the Issuer or ~~the SPAC~~ RMG II 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~RMG II, the ~~SPAC~~ Company and the ~~Transactions~~Transactions and 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 RMG II and the Company. 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 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~~ acknowledges that each of BofA Securities, Inc. (“BofA”) and ~~warrants it is relying exclusively on its own sources~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) (the “Placement Agents”, each a “Placement Agent”) and each of ~~information~~their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ 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 ~~Transactions~~Issuer, RMG II, the ~~Subscribed~~ Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer, RMG II or the Company. The Subscriber acknowledges that it 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, including information related to the Issuer, RMG II, the Company, the Shares and the ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe,~~ Shares. Subscriber further acknowledges that the information provided to Subscriber is preliminary and ~~the SPAC, including but not limited~~ subject to ~~all business, legal, regulatory, accounting, credit and tax matters~~change. 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 from either the Placement Agents, the Issuer or RMG II as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer, RMG II or their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~Placement Agents, the ~~SPAC~~ Issuer or ~~one of their respective representatives~~RMG II. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ j) 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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 the institutional customer exemption under FINRA Rule 2111(b). k) Subscriber represents and acknowledges that Subscriber, alone, or together with any professional advisor(s), has 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. l) 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. ~~2.1.12~~ m) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons~~ 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 ~~List~~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 ~~person~~ citizen, national, or ~~entity prohibited~~ 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 ~~any OFAC sanctions program~~the United States, (iiiv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (~~iii~~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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ n) 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 ~~Similar Laws~~ 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 ~~none of the~~ neither Issuer, ~~the SPAC~~ 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 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. ~~2.1.14~~ o) 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 RMG II’s ordinary shares prior to the ~~SPAC’s common stock~~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 or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 incurrent

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp. II)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of ~~the~~ 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 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~~ capacity to enter into, 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 ~~other parties hereto~~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. ~~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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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~~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 ~~or any of its subsidiaries or any of their respective properties~~ 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”). ~~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 “accredited investor” within the meaning of Rule 501(a) under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) ~~and~~ 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, (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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 cases (i‎(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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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 ~~the relevant resale~~ any provisions of ~~Rule 144~~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, 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 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, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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~~, Paysafe, the SPAC and the 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 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 2.1.9. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 2.1.10. 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 Subscribed Shares. ~~2.1.12~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. ~~2.1.14~~ 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 ~~SPAC~~Issuer’s ~~common stock~~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 the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 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 ininterest 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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a material adverse effect on~~ 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 (a “Subscriber Material Adverse Effect”),~~ 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~~ subsidiaries; or (iii) result in any violation of any ~~statute~~ law 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 subsidiaries or any of their respective properties that would ~~reasonably be expected~~ materially affect the legal authority of Subscriber to ~~have a Subscriber Material Adverse Effect~~comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA hereto, (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 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, 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 (iii) 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 following the signature page~~ A hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 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 the ~~Issuer~~ 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 cases (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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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~~ acknowledges that it has been advised to consult ~~independent~~ legal counsel and tax and accounting advisors prior to making any offer, resale, 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 the Issuer. Subscriber further~~ acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by or on behalf of the ~~Issuer~~Company, ~~the SPAC~~ QualTek or their respective affiliates or any of their respective ~~officers~~ subsidiaries, 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 and agreements ~~expressly set forth~~ of the Company included in this Subscription Agreement. Subscriber hereby expressly and irrevocably acknowledges and agrees that, with respect to the transactions contemplated hereby, he, she or it has not relied on any other representations, warranties, covenants, agreements or statements (including by omission) and all other 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 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~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 upon the ~~representations,~~ representations and warranties ~~and covenants~~ of the ~~Issuer and the SPAC contained~~ Company made in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to 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 ~~Subscribed~~ Shares and has made its own assessment and is satisfied concerning the relevant tax, legal and other economic considerations relevant to Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, ~~including with respect~~ Subscriber acknowledges that it has reviewed the documents provided to Subscriber by the ~~Issuer, Paysafe, the SPAC and the Transactions~~Company. Subscriber represents and ~~agrees~~ warrants 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)~~ has had the full opportunity to ask such questions, receive such 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 ~~Subscribed~~ Shares. Subscriber ~~represents~~ 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 ~~warrants it is relying exclusively on its own sources of information~~that the Placement Agents and their respective directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to the ~~Transactions~~Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by 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 Company. Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 (~~Placement Agents’ affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Shares, ~~or (ii)~~ including information related to the ~~business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Company, the ~~SPAC or~~ Shares and the ~~Transactions,~~ offer 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 sale of the ~~Transactions~~Shares. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely (i) by means of direct contact from one or both of the Placement Agents or (ii) directly from the Company as a result of a pre-exiting, substantial relationship with the Company, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer,~~ Placement Agents or the ~~SPAC or one of their respective representatives~~Company. 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~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (iA) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising and (iiB) ~~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, or any ~~applicable~~ other federal, state or foreign securities laws. ~~2.1.11~~ 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. Subscriber understands and ~~agrees~~ 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 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 the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists and that it is able to fend for itself in the transactions contemplated hereby. 2.1.12 Subscriber understands and acknowledges that no ~~federal~~ federal, state or ~~state~~ other 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. ~~2.1.12~~ 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 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, or in any other list of prohibited or restricted parties promulgated by OFAC, the Department of Commerce, or the Department of State (“~~OFAC List~~Sanctions Lists”), or a person or entity prohibited by or restricted under any OFAC sanctions program, (ii) greater than 50% owned, directly or indirectly, or controlled by, or acting on behalf of, one or more persons that are named on any 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, Myanmar, Venezuela, 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~~ National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515~~ 515, or (~~iii~~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. If 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 ~~represents that 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,~~ that it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC List~~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 ~~Subscribed~~ Shares were legally ~~derived. 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA~~derived and were not obtained, directly or indirectly, from 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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 SharesProhibited Investor. 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a “foreign person,” “foreign government,” or a “foreign entity,” in each case, as defined in Section 721 of the Defense Production Act of 1950, as amended, including, without limitation, all implementing regulations thereof (the “DPA”). Subscriber is not controlled, in whole or in part, by a “foreign person,” as defined in the DPA. 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) ~~and that~~ will acquire substantial interest in the Company as a ~~substantial in~~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 the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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. ~~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~~ if Subscriber is not an individual, result in ~~a breach or~~ any violation of ~~any~~ the provisions of the ~~terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets~~ organizational documents of Subscriber or any of its subsidiaries ~~pursuant to the terms~~ or (ii) result in any violation of any ~~indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber~~ statute or any judgment, order, rule or regulation of ~~its subsidiaries is a party~~ any court or ~~by which~~ governmental agency or body, domestic or foreign, having jurisdiction over 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~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have 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 “accredited investor” within the meaning of Rule 501(a) 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, (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, 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, 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 (iii) 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 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 cases (i‎(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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such 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, 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 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ 23andMe, or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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,~~ Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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, ~~Paysafe, the SPAC~~ 23andMe and the 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 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,~~ Issuer and ~~the SPAC,~~ 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 ~~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, 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, ~~or any other matter concerning~~ the Issuer, ~~Paysafe, the SPAC~~ 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~~, 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. 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~~ 2.1.10. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 by any form of general solicitation or general advertising, including methods described in 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~~, or any applicable state securities laws~~. ~~2.1.11~~ 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. ~~2.1.12~~ 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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. ~~2.1.14~~ 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~~Issuer’s ~~common stock~~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 the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.15. 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 ininterest 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 the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 ~~other parties hereto~~Issuer, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 or regulation of any ~~court or governmental agency or body, domestic or foreign,~~ Governmental Authority having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 1 Note to Draft: Bracketed text in this Section 1 to be included in Sponsor Subscription Agreement only. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6) 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 II hereto, (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, 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, 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 account and (iii) 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such 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 Acteffect. Subscriber understands and agrees that the ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 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 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, ~~the SPAC~~ Altus, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements made by the Issuer and expressly set forth in this Subscription Agreement. 2.1.7 ~~Subscriber represents and warrants that its~~ Subscriber’s 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”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or a violation of any applicable ~~other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code~~ Similar Law (~~collectively, “Similar Laws”~~as defined below). 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 representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ Altus and the Transactions, and 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 ~~(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 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~~ further acknowledges that any information contained in Target Disclosure is preliminary and ~~warrants it is relying exclusively~~ subject to change, and that any changes to the information contained in the Target Disclosure, including, without limitation, any changes based on ~~its own sources~~ updated information or changes in terms of ~~information~~the Transaction, ~~investment analysis~~ 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 ~~due diligence (including professional advice you deem appropriate)~~ the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the ~~Transactions,~~ Issuer or Altus which Subscriber agrees need not be provided to it. In connection with the ~~Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ issuance of the ~~Issuer~~Shares to Subscriber, ~~Paysafe, and~~ none of the ~~SPAC, including but not limited~~ Placement Agents or any of their respective affiliates has acted or shall be construed to ~~all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ have acted as a financial advisor or fiduciary to Subscriber. Subscriber ~~acknowledges and~~ agrees that (a) ~~each~~ none 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 any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with ~~the Transactions~~ 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, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter concerning the Issuer, ~~Paysafe, the SPAC~~ Altus or the ~~Transactions~~offering, and (db) ~~the~~ no Placement ~~Agents~~ Agent shall have no 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, the SPAC~~ 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~~offering. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between Subscriber and the ~~Issuer,~~ Issuer or its representatives. The Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~SPAC~~ Issuer or ~~one of their respective~~ its 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 by any form of general 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, 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. 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 Alone, or together with any professional advisor(s), 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 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. ~~2.1.12 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~~ 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 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) 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 any 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 (~~iii~~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~~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 ~~represents that it~~ 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 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~~required by applicable law, 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. ~~2.1.13~~ 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~~ 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 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. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar ~~Laws~~ 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~~ (ii) and (iii) subject to the fiduciary or ~~arrangement~~ prohibited transaction provisions of ERISA, Section 4975 of the Code or Similar Laws (~~each~~each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that ~~none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”)~~ it has ~~acted as the Plan’s fiduciary, or has been~~ not 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. 2.1.14 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 the Issuer or ~~the SPAC~~ any of its affiliates (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and the ~~SPAC~~ Placement Agents (as defined below) and acknowledges and agrees with the Issuer and the ~~SPAC, as of the date hereof and as of the Closing Date,~~ 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority or ability of Subscriber to enter into ~~and~~ or timely perform its obligations under this Subscription 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 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 or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is ~~(a) a “qualified~~ an institutional ~~buyer” (as defined in Rule 144A under the Securities Act) or an~~ “accredited investor” within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act~~, (b~~”) or a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act that was also 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“accredited investors”, satisfying the applicable requirements set forth on Schedule II hereto, (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, 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, 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 account and (iii) 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 ~~following~~ hereto in addition to certain other customary information reasonably requested by the ~~signature page hereto~~Issuer)~~. 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 representing the ~~Subscribed~~ Shares shall contain a ~~legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from 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 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, ~~the SPAC~~ Rigetti, or any of their respective ~~officers~~ affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, 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, in each case, may give rise to potential conflicts of interest or the appearance thereof. ~~2.1.7 Subscriber represents and warrants that its~~ 2.1.7. Subscriber’s 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. ~~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 representations, warranties and ~~covenants of the Issuer and the SPAC contained in this Subscription Agreement~~agreements herein. 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or 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, ~~Paysafe, the SPAC~~ Rigetti and the ~~Transactions~~Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to 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 ~~(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 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 (ai) ~~each~~ 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 ~~is acting solely as placement agent~~ nor any of their respective affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer and is 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, 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 ~~acting as an underwriter~~ limited to, any action heretofore or in hereafter taken or omitted to be taken by any ~~other capacity~~ of them in connection with the ~~Subscriptions~~ Subscriber’s purchase of the Shares. The Subscriber hereby understands and ~~is not and shall not be construed as a fiduciary for Subscriber~~ 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 ~~other person~~ of their respective businesses, or ~~entity~~ 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 ~~Transactions~~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, ~~(b)~~ 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 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 Transactionstheir respective affiliates. 2.1.10 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer, the SPAC or 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 means2.1.10. Subscriber acknowledges that the Issuer represents and warrants that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ state securities laws. ~~2.1.11~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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). 2.1.12. Alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12 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 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~~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”), ~~Subscriber represents that it~~ 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 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 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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inot

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Issuer to issue the Subscribed Shares,~~ Such Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 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 other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the ~~property or~~ assets of such Subscriber ~~or any of its subsidiaries~~ pursuant ~~to the terms of~~ to, any indenture, mortgage~~, charge~~, deed of trust, loan agreement, ~~lease, license~~ or other agreement or instrument to which such Subscriber ~~or any of its subsidiaries~~ is a party or by which such 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 reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or materially 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 (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~~ such Subscriber, (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 such Subscriber or any of its ~~subsidiaries or any of their~~ respective properties or assets that would reasonably be expected to have a Subscriber Material Adverse Effect, or (iv) with respect to the 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, deliver and perform its obligations under, and all transactions contemplated by, this Redemption Subscription Agreement. 2.1.4 Such Subscriber (i) is ~~(a)~~ 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~~, (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, (ii) is acquiring the ~~Subscribed~~ Subject 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, 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, 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 others and (iii) is not acquiring the ~~Subscribed~~ 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 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 ~~Subscribed~~ Subject Shares. 2.1.5 Such Subscriber understands that the ~~Subscribed~~ Subject Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed~~ 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 ~~Subscribed~~ Subject Shares may not be resold, transferred, pledged or otherwise disposed of by such Subscriber absent an effective registration statement under the Securities Act, except (i) to 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~~ Act, (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 ~~cases~~ 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 ~~Subscribed~~ Subject Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Such Subscriber acknowledges that the ~~Subscribed~~ Subject Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Such Subscriber understands and agrees that ~~the Subscribed Shares will be subject to the foregoing restrictions and,~~ as a ~~result~~result of the transfer restrictions set forth herein, such Subscriber may not be able to readily resell the ~~Subscribed~~ Subject Shares and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Subject Shares for an indefinite period of time. Such Subscriber understands that it has been advised to consult ~~independent~~ legal counsel and tax and accounting advisors prior to making any offer, resale, 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 Subject Shares. 2.1.6 Such Subscriber understands and agrees that such Subscriber is purchasing the ~~Subscribed~~ Subject Shares directly from the Issuer. Such Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to such Subscriber by the Issuer, the ~~SPAC~~ Company or any of their respective ~~officers~~ Affiliates, officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, 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 Such Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed~~ Subject Shares, such Subscriber represents that it has relied solely upon independent investigation made by such Subscriber and the Issuer’s representations, warranties and ~~covenants of the Issuer and the SPAC contained in this Subscription Agreement~~agreements herein. Without limiting the generality of the foregoing, such 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 and ~~the SPAC and their respective~~ its representatives concerning the Issuer or the ~~SPAC or the Subscribed~~ Subject Shares or the offer and sale of the ~~Subscribed~~ Subject Shares. Such Subscriber acknowledges and agrees that such Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as such Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Subject Shares, including with respect to the ~~Issuer, Paysafe, the SPAC~~ Issuer and the ~~Transactions~~Company (including giving effect to the Mergers), and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to 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 ~~(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 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 ~~Subscribed~~ Subject 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, the SPAC or 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. Such Subscriber acknowledges that the ~~Issuer represents and warrants that the Subscribed~~ Subject Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ 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 and tax advice as such Subscriber has considered necessary to make an informed investment decision. 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 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed~~ Subject Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Subject Shares. ~~2.1.12~~ 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 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. Such Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable ~~law~~Law, provided that such Subscriber is permitted to do so under applicable ~~law~~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 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed~~ Subject Shares were legally derived. 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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~~ result of the ~~SPAC’s common stock~~entry into this Redemption Subscription Agreement, such 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 the Issuer ~~or the SPAC~~ (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 Such Subscriber represents and agrees that on the date hereof, such Subscriber has access to sufficient available funds to pay the Backstop Purchase, and on the date the Backstop Purchase would be required to be funded to the Issuer pursuant to Section 3.1, such Subscriber will have sufficient immediately available funds to pay the Backstop Purchase pursuant to Section 3.1. From the date hereof until the Closing Date, such Subscriber shall not make any dividends or distributions that would render Subscriber unable to satisfy its obligation to pay the Backstop Purchase. From the date hereof 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 Redemption Subscription Agreement. 2.1.17 Such Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is ~~not a foreign person~~ 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) and that will acquire a substantial in~~beneficial owner of

Appears in 1 contract

Sources: Redemption Subscription Agreement (Aurora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ Bridgetown 2 and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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, 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 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 ~~other parties hereto~~Issuer and Bridgetown 2, 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 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~~ (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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on ~~the legal authority of Subscriber~~ Subscriber’s ability to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ (d) 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~~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, (ii) 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”), (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 ~~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, ” 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 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 (~~iii~~v) 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 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 Subscribed Shares~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ 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 ~~Subscribed~~ 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 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~~Act or in a transaction not subject thereto, and in each ~~of cases (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~~ book entries representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a 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 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~~ (f) Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Issuer or Bridgetown 2 or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, 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 Subscriber represents and warrants that its~~ (g) Subscriber’s acquisition and holding of the ~~Subscribed~~ Shares 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) 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 ~~other 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”)~~law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the ~~Subscribed~~ Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Bridgetown 2’s representations, warranties and ~~covenants of the Issuer and the SPAC~~ agreements contained in ~~this Subscription Agreement~~Section 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 Credit Suisse Securities (USA) LLC~~including, ~~▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents~~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 and ~~the SPAC and their respective representatives~~ Bridgetown 2 concerning the Issuer or ~~the SPAC~~ Bridgetown 2, respectively, 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, ~~Paysafe~~the “Group”), Bridgetown 2, the ~~SPAC~~ Company and the ~~Transactions~~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 ~~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 ~~(i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ had the full opportunity to ask such ~~questions,~~ questions and receive such answers from Bridgetown 2 and ~~obtain~~ the Company 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 ~~Subscribed~~ Shares and have independently made their own analysis and decision to invest in the Shares. Subscriber ~~represents~~ also acknowledges that the historical financial data concerning the Company and ~~warrants it~~ 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 ~~you deem~~ Subscriber deems appropriate) with respect to the ~~Transactions~~Subscription, the ~~Subscribed~~ Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the ~~Issuer, Paysafe,~~ Issuer or the Company and its subsidiaries or relating to the ~~SPAC~~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~~ that: (ai) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the ~~Transactions~~ 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 ~~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,~~ Subscription; (bii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have ~~not made and~~ made, nor will ~~not make~~ any of such persons make, any representation or warranty, whether express or implied, of any kind or character ~~and~~ nor have ~~not~~ any such persons provided any advice or recommendation in connection with the ~~Transactions~~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; (civ) 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 (iA) any representations, warranties or agreements made by any person or entity under or in connection with the ~~Transactions~~ 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) or of any thereof, or (iiB) the business, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter ~~concerning the Issuer, Paysafe~~concerning, the ~~SPAC~~ Group or the ~~Transactions, and~~ Subscription; and (dvi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have no 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, Bridgetown 2 or the ~~Issuer, the SPAC~~ 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 ~~Transactions~~Subscription. ~~2.1.10~~ (j) Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agents, the Issuer or Bridgetown 2 as a result of a pre-existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the Issuer, Bridgetown 2 or their representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer~~Placement Agents, the ~~SPAC~~ Issuer or ~~one of their respective representatives~~Bridgetown 2. 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 by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inno

Appears in 1 contract

Sources: Subscription Agreement (PropertyGuru Group LTD)

Appears in 1 contract

Sources: Subscription Agreement (Vertical Aerospace Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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 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 other parties hereto, then this Subscription Agreement is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (i) if not an Israeli resident or entity, is ~~(a)~~ a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) 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, (ii) if an Israeli resident or entity, is an investor in 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 ~~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,~~ 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 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 federal securities laws of the United States or any other applicable jurisdiction ~~and (iii) 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 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 or the Securities Law, and that the ~~Subscribed~~ Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the ~~Subscribed~~ 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 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 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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 ~~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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~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 representations~~its own sources of information, ~~warranties~~ investment analysis and ~~covenants of the Issuer~~ due diligence (including professional advice it deems appropriate) and the ~~SPAC contained~~ Issuer’s express representations and warranties in ~~this Subscription Agreement~~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 (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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Sharesanyone. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the 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 ~~(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 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~~ acknowledges that Citigroup Global Markets Inc., ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. and ~~warrants it is relying exclusively on its own sources of information~~BofA Securities, ~~investment analysis~~ Inc. (collectively, the “Placement Agents”) and ~~due diligence (including professional advice you deem appropriate)~~ their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the ~~Transactions~~Issuer, the ~~Subscribed~~ Company or the Shares ~~and~~ or the ~~business~~accuracy, ~~condition (financial and otherwise), management, operations, properties and prospects~~ completeness or adequacy of any information supplied to the ~~Issuer, Paysafe, and~~ Subscriber by the ~~SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ Issuer or the Company. Subscriber acknowledges ~~and agrees~~ that (a) ~~each~~ 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 ~~is acting solely as placement agent~~ nor any of their affiliates have prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability~~ that any changes to such information, including any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agents or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives (including the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agents or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, 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. 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 Alone, or together with any professional advisor(s), 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 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, 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. ~~2.1.12~~ 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program, (ii) a Designated National as defined in~~ program or 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~~Department of State. 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. If 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 ~~represents that it~~ 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 for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ 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 ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. ~~2.1.13~~ 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 ~~Similar Laws~~ 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 ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ its affiliates (collectively, 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Valens Semiconductor Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Warrants to each Subscriber, ~~Subscriber~~ each Subscriber, severally (and not jointly), hereby represents and warrants (as to itself only) to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer~~ Company, severally (and ~~the SPAC, as of the date hereof and as of the Closing Date~~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 in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, 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 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 ~~other parties hereto~~Company, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 Subscriber (i) is ~~(a)~~ a “qualified institutional buyer” (as defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) 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 III, (ii) is acquiring the ~~Subscribed Shares~~ Warrants only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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 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 account and (iii) is not acquiring the ~~Subscribed 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 II following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Warrants. 2.1.5 Subscriber understands that the ~~Subscribed Shares~~ Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Warrants have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing the ~~Subscribed Shares~~ Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed Shares~~ Warrants will not be eligible for resale pursuant to Rule ~~144A promulgated under the Securities Act.~~ 144A. Subscriber understands and agrees that the ~~Subscribed Shares~~ Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Warrants 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 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 SharesWarrants. 2.1.6 Subscriber understands and agrees that Subscriber is ~~purchasing~~ subscribing for the ~~Subscribed Shares~~ Warrants directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber with respect to the Warrants by the ~~Issuer, the SPAC~~ Company or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 Each Subscriber represents and warrants (as to itself only) that its acquisition and holding of the ~~Subscribed Shares~~ 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”), 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to ~~purchase~~ subscribe for the ~~Subscribed Shares~~Warrants, each Subscriber represents (as to itself only) that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in this Subscription Agreement~~Subscriber. 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~~ Company and ~~the SPAC and their respective~~ its representatives concerning the ~~Issuer~~ Company or the ~~SPAC or the Subscribed Shares~~ Warrants or the offer and sale of the ~~Subscribed Shares~~Warrants. Subscriber acknowledges and agrees (as to itself only) that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares~~Warrants, including with respect to the ~~Issuer, Paysafe, the SPAC and the Transactions~~Company. Subscriber represents and agrees (as to itself only) 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 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 mattersWarrants. 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~~ 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 (the “Commission”) under the Securities Act) with the Company or its representative, and the ~~SPAC~~ Warrants were offered to Subscriber solely by direct contact between Subscriber and the Company or ~~one of their respective representatives~~its representative. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Warrants, nor were the ~~Subscribed Shares~~ Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed Shares~~ Warrants (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription for and ownership of 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 Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges (as to itself only) that Subscriber has adequately analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Warrants or made any findings or determination as to the fairness of an investment in the ~~Subscribed Shares~~Warrants. ~~2.1.12~~ 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 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~~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. If 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 ~~represents that it~~ 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. ~~2.1.13~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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 (as to itself only) that ~~none of~~ neither the ~~Issuer~~Company, ~~the SPAC~~ 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 its decision to acquire and hold the ~~Subscribed Shares~~Warrants, 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~~Warrants. ~~2.1.14~~ 2.1.15 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~~Company’s ~~common stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.16 Subscriber is will 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~~ 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 ~~that~~ Subscriber will ~~acquire~~ not have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a ~~substantial in~~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.)

Appears in 1 contract

Sources: Business Combination Agreement (Broadstone Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber at the Closing, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) 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~~deliver, ~~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 (including the transactions contemplated herein) 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 ~~other parties hereto~~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 or other laws relating to or affecting the rights of creditors ~~generally,~~ 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 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~~ Subscriber, pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, 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 reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ability of, or prevent, impair, delay or impede the legal authority of of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription 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~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 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 execution, delivery and performance by Subscriber of this Subscription Agreement. 2.1.6 Subscriber is (i~~) is (a~~) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities ~~Act~~Act (“Regulation D”)), in each case, satisfying the applicable requirements set forth on Schedule I attached hereto, (bii) an ~~Institutional Account~~ “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) 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”), (iv) 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”), (v) acquiring the Shares only for its own account 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 acknowledgments, representations, warranties, and agreements herein on behalf of each owner of each such account, and (cvi) 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). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.7 Subscriber is a sophisticated ~~institutional~~ investor, experienced in investing in securities 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~~ and has exercised independent judgment in evaluating its 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, 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, 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 (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.8 Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction, and as a result, the sale of the Shares to Subscriber is being made pursuant to an exemption from registration 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 the ~~Issuer~~ 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, ~~pledge~~ pledge, or transfer of any of the ~~Subscribed~~ Shares. By making the representations herein, Subscriber ~~has determined based on its own independent review and such professional advice as it deems appropriate that its purchase~~ does not agree to hold any of the ~~Subscribed~~ Shares ~~are~~ for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a ~~suitable investment for Subscriber, notwithstanding~~ registration statement or an exemption under the ~~substantial risks inherent in investing in or holding the Subscribed Shares~~Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective officers~~ its affiliates or control persons, officers, directors, employees, agents, partners or 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 the Company expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by the Company expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 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. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”), 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 to such provisions of ERISA or the Code~~ Similar Law (~~collectively, “Similar Laws”~~as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance 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 and the SPAC and their respective representatives any Non-Party Affiliate concerning the ~~Issuer~~ Company or the ~~SPAC or the Subscribed Shares or~~ Shares, the offer and sale of the ~~Subscribed Shares~~Shares 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 ~~Subscribed~~ Shares, including with respect to the ~~Issuer, Paysafe~~Company, the ~~SPAC~~ offer and sale of the ~~Transactions~~Shares 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 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 the Company, (the “Disclosure Package”), provided by 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 ~~(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 and conducted and completed their own independent diligence concerning the Company, the Shares, the offer and sale of the Shares and the other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber ~~represents~~ has deemed appropriate, Subscriber has independently made its own analysis and ~~warrants it~~ decision to subscribe for and purchase the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Company 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 ~~you deem~~ it deems appropriate) with respect to the ~~Transactions~~Company or the Shares, the ~~Subscribed~~ offer and sale of the Shares or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that none of its affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “Representatives”) have made any 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 or any of its subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any of its affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe,~~ Shares 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~~ (aii) ~~each~~ none of ~~the Placement Agents is acting solely as placement agent~~ its affiliates has prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale 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 TransactionsShares. ~~2.1.10~~ 2.1.14 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between ~~Subscriber~~ Subscriber, on the one hand, and the ~~Issuer~~Company or its representatives, on the ~~SPAC or one of their respective representatives~~other hand. The Shares were offered to Subscriber solely by such direct contact. 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 it by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects,~~ 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,~~ Act or any other applicable ~~state~~ securities laws. ~~2.1.11~~ 2.1.15 Subscriber ~~understands~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ~~agrees that no federal or state agency~~ ownership of the Shares, including those set forth in the Disclosure Package and the Company SEC Documents (as defined below). Subscriber is a sophisticated institutional investor, is able to fend for itself in the transactions contemplated herein, has ~~passed upon or endorsed~~ such knowledge and experience in financial and business matters as to be capable of evaluating the merits ~~of the offering of the Subscribed Shares or made any findings or determination as to the fairness~~ and risks of an investment in the ~~Subscribed~~ Shares~~. 2.1.12~~ . Subscriber ~~represents and warrants~~ acknowledges that Subscriber ~~is not (i)~~ shall be responsible for any of Subscriber’s tax liabilities that may arise as 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 result of the ~~United States and administered~~ transactions contemplated 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. 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 2001this Subscription Agreement, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the ~~Issuer, the SPAC nor~~ Company or any of ~~their respective affiliates (~~its agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding 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~~ tax consequences of the ~~Transaction Parties shall at any time be relied upon as~~ transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. 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 purchase and ~~Exchange Commission (the “Commission”) with respect to the beneficial ownership~~ sale 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~~ Shares hereunder meets 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 the Issuer or the SPAC (within the meaning of institutional customer exemption under FINRA Rule ~~13d-5(b)(1) under the Exchange Act~~2111(b). ~~2.1.15~~ 2.1.16 Subscriber ~~is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which~~ represents and acknowledges that Subscriber, alone, or together with its professional advisor(s), if any, has adequately analyzed and fully considered 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 in~~risks

Appears in 1 contract

Sources: Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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. ~~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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (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~~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 ~~Subscriber’s~~ its participation in the ~~purchase of the Subscribed Shares~~Subscription, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) 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, 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, 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 (~~iii~~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 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. 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~~ 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 cases (i‎(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 representing~~ the Subscribed Shares shall ~~contain~~ be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule ~~144~~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, 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 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, 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 the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Oculis, the ~~SPAC~~ Placement Agent (as defined below) or any of ~~their respective officers~~ its affiliate or any control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, other ~~than~~ than, in the case of the Issuer only, those representations, warranties, 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 have not been reviewed by any outside party or, 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~~ 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 ~~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 other 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”). ~~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 representations, warranties and covenants of the Issuer ~~and the SPAC~~ contained in 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”)~~Agent), other than the Issuer and ~~the SPAC and their respective~~ its representatives concerning the Issuer ~~or 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, ~~Paysafe~~Oculis, ~~the SPAC~~ and the 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~~ them in connection with the Subscription and ~~(ii)~~ the Transactions, have had the full opportunity to ask such questions, including on the financial information, 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 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~~ 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, Paysafe,~~ Issuer and ~~the SPAC,~~ 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) ~~each of~~ it has been informed that the Placement ~~Agents~~ Agent is acting solely as placement agent in connection with the ~~Transactions~~ Subscription and is not acting as an underwriter or in any other capacity in connection with the ~~Subscriptions~~ Subscription and is not and shall not be construed as a fiduciary for ~~Subscriber~~ Subscriber, the Issuer, Oculis or any other person or entity in connection with the Transactions, (b) the Placement ~~Agents have~~ 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 ~~Agents~~ 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~~ concerning, the Issuer, ~~Paysafe~~Oculis, the ~~SPAC~~ Subscription or the Transactions, ~~and~~ (d) the Placement ~~Agents~~ 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, ~~the SPAC~~ 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 ~~Subscriber~~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. ~~2.1.10~~ 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or 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 or general advertising. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inSh

Appears in 1 contract

Sources: Subscription Agreement (European Biotech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ HPX and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the Closing Date,~~ 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, 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 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 ~~other parties hereto~~Issuer and HPX, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ 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 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~~ (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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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~~ that would reasonably be expected to ~~have a material adverse effect on~~ adversely affect the ~~legal authority of Subscriber~~ Subscriber’s ability to acquire and hold Shares and to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 Subscriber~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (aA) 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~~501(a)(1), (2), (3), (7), (9) or (12) of Regulation D under the Securities Act), ~~(b)~~ in either case satisfying the applicable requirements set forth on Schedule I, and an ~~Institutional Account~~ “institutional account” as defined in FINRA Rule 4512(c), and is not an entity formed for the specific purpose of acquiring the Shares, (B) ~~and (c)~~ is a sophisticated ~~institutional~~ investor, experienced in investing in private equity 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~~ (C) has exercised independent judgment in evaluating its participation in the purchase of the ~~Subscribed~~ Shares, ~~in each case, satisfying the applicable requirements set forth on Schedule I,~~ (iiD) 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 ~~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, ” 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 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~~ jurisdiction, (~~iii~~E) 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 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 ~~an entity formed for the specific purpose of~~ a U.S. person, (A) Subscriber is acquiring the ~~Subscribed Shares. 2.1.5~~ Shares in an “offshore transaction” meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the ~~Subscribed~~ 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 account or benefit of any person located in the 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. (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 ~~Subscribed~~ 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 ~~Subscribed~~ Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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~~Act or in a transaction not subject thereto, and in each ~~of cases (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 book entries or certificates representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer or 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, transfer or ~~transfer~~ disposition 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~~ (f) Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, statements or agreements made to Subscriber by or on behalf of the ~~Issuer, the SPAC~~ 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~~ 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, covenants, statements or agreements other than those expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents and warrants~~ (g) Subject to the assumption that ~~its acquisition and holding~~ the assets of the ~~Subscribed Shares will~~ Issuer do not constitute ~~or result in a non-exempt prohibited transaction~~ “plan assets” under ~~Section 406 of~~ the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”),~~ if Subscriber is or any applicable other 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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, on behalf 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 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~~ 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~~ Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that ~~none~~ 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. (h) 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 upon, any statements, representation or warranty or other information provided by anyone (including HPX, the Issuer, the ~~SPAC~~ Company, 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 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 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 invest in the Shares. 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 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 Issuer 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 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 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 the Subscription; (ii) neither the Placement Agents nor any of their respective ~~affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary~~directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or ~~has been relied on for advice~~warranty, ~~with respect to its decision to acquire and hold the Subscribed Shares~~whether express or implied, ~~and none~~ of ~~the Transaction Parties shall at~~ any ~~time be relied upon as the Plan’s fiduciary with respect to~~ kind or character nor have any ~~decision to acquire, continue to hold~~ such persons provided any advice or transfer the Subscribed Shares. 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inreco

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the Issuer ~~and the SPAC, as of the date hereof and as of the 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 and perform its obligations under this Subscription Agreement. If Subscriber is an individual~~deliver, ~~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 other parties hereto~~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~~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 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~~ subsidiaries, if any, 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~~ subsidiaries, if any, is a ~~party~~ party, or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, is subject, which would reasonably be expected to have ~~a material~~ an adverse effect on the ~~legal authority~~ ability of Subscriber to enter into and timely perform its obligations ~~under~~ under, this Subscription 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~~ subsidiaries, if any, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 ~~subsidiaries~~ subsidiaries, if any, or any of their respective properties that would reasonably be expected to have 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. 2.1.5 Subscriber is (i~~) is (a~~) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D 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 II attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) 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, 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 (~~iii~~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 ~~following the signature page~~ attached hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~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~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, the ~~SPAC~~ 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~~ 2.1.9 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 1 of 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 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 ~~other 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”). 2.1.8~~ law. 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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the ~~Issuer~~ Issuer, the Company or 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 financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~the Company, ~~the SPAC~~ 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. 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 ~~(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 reasonably 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 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 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 ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or ~~one of their respective representatives~~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~~ it has not become aware of this offering (i) ~~were not offered~~ by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act and~~ Act, or (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. ~~2.1.11~~ 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). 2.1.13 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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~~ 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 ~~List~~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~~ 515, or (~~iii~~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, ~~provided~~ that Subscriber is permitted to do so under applicable law. If 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 ~~represents that 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 ~~List~~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 ~~Subscribed~~ Shares were legally derived. ~~2.1.13~~ 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~~ 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 ~~Similar Laws~~ 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 ~~none of~~ neither the ~~Issuer, the SPAC~~ Issuer nor any of ~~their respective~~ 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~~ hold, or transfer the ~~Subscribed~~ Shares. 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, 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~~ holding, or disposing of equity securities of the Issuer ~~or the SPAC~~ (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.15~~ 2.1.18 The Subscriber ~~is not a foreign~~ 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 ~~31 C.F.R. Part 800.224)~~ Rule 200 of Regulation SHO under the Exchange Act, including all types of direct and indirect stock pledges (other than pledges in ~~which~~ the ~~national~~ ordinary course of business as part of prime brokerage or ~~subnational governments of~~ other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a ~~single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244)~~ total return basis), and ~~that will acquire a substantial in~~sales 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 ~~the Issuer~~ Pubco to issue the ~~Subscribed Shares~~Pubco Shares to Subscriber, Subscriber hereby represents and warrants to ~~the Issuer and the SPAC and acknowledges~~ Pubco, and agrees with ~~the Issuer and the SPAC, as of the date hereof and as of the Closing Date~~Pubco, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with the power and authority to enter into, deliver and perform all of 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 ~~other parties hereto~~Pubco, this Subscription Agreement ~~is the valid and binding obligation of 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 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the 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 (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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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 IA, (ii) is acquiring the ~~Subscribed~~ Pubco Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed~~ 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, 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 (iii) is not acquiring the ~~Subscribed~~ Pubco 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~~ Act. Subscriber has completed Schedule I A following the signature page ~~hereto)~~hereto and the information contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~Subscribed~~ Pubco Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed~~ Pubco Shares have not ~~been~~ been, and will not be registered under the Securities ~~Act~~Act prior to Closing. Subscriber understands that the ~~Subscribed~~ Pubco Shares may not be resold, transferred, 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 ~~Issuer~~ 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 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~~ Pubco Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ Pubco Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed~~ Pubco Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Pubco Shares and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Pubco 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 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 Pubco Shares. 2.1.6 Subscriber ~~understands~~ acknowledges and agrees that the Subscriber is purchasing the ~~Subscribed~~ Pubco Shares directly from the ~~Issuer~~Pubco. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by ~~the Issuer, the SPAC~~ Pubco or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Subscribed~~ Pubco 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed~~ Pubco Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the ~~Issuer and the SPAC~~ Pubco contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to 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 ~~Subscribed Shares~~Pubco Shares and made its own assessment and is satisfied concerning the relevant tax, ~~including with respect~~ legal and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Pubco Shares. Without limiting the generality of the foregoing, the ~~SPAC~~ 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 ~~Transactions~~Company. The Subscriber represents and agrees that the Subscriber ~~and Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii)~~ has had the full opportunity to ask such questions, receive such 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 ~~Subscribed~~ Pubco Shares. The Subscriber ~~represents~~ acknowledges that, aside from certain disclosures pertaining to valuation, transaction structure, and ~~warrants it is relying exclusively on~~ 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 ~~own sources of information~~directors, ~~investment analysis~~ officers, employees, representatives and ~~due diligence (including professional advice you deem appropriate)~~ controlling persons have made no independent investigation with respect to Pubco or the ~~Transactions~~Pubco Shares or the accuracy, completeness or adequacy of any information supplied to the ~~Subscribed Shares and~~ Subscriber by 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 Company or Pubco. The Subscriber acknowledges ~~and agrees~~ that ~~(a) each of~~ it has not relied on any statements or other information provided by 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 Agent or any of the ~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~Placement Agent’s affiliates with respect to ~~any person) or any thereof~~its decision to invest in the Pubco Shares, ~~or (ii)~~ including information related to the ~~business~~Company, ~~condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe~~Pubco, the ~~SPAC or~~ Pubco Shares and the ~~Transactions,~~ offer 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 sale of the ~~Transactions~~Pubco Shares. The information provided to the Subscriber is preliminary and subject to change. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed~~ Pubco Shares solely (a) by means of direct contact from the Placement Agent, Pubco, the Company or a representative of Pubco or the Company or (b) directly from Pubco or the Company as a result of a pre-existing, substantial relationship with the Company, and the Pubco Shares were offered to Subscriber solely by direct contact between Subscriber and any of the ~~Issuer~~Placement Agent, Pubco, the ~~SPAC~~ Company or ~~one~~ a representative of ~~their respective representatives~~Pubco or the Company. Subscriber did not become aware of this offering of the ~~Subscribed~~ Pubco Shares, nor were the ~~Subscribed~~ Pubco Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that Pubco represents and warrants that the ~~Subscribed~~ Pubco Shares (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber 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 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 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 ~~Subscribed~~ Pubco Shares or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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”), ~~Subscriber represents~~ that it 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 ~~Subscribed~~ Pubco Shares were legally derived. ~~2.1.13 If~~ 2.1.14 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~~ Section 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the PlanSubscriber’s ~~fiduciary, or has been relied on~~ securities 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. 2.1.14 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 the Issuer or the SPAC (within the meaning purposes of Rule ~~13d-5(b)(1~~506(d) under the ~~Exchange~~ Securities Act). 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Rodgers Silicon Valley Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ 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 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 other parties hereto, this Subscription Agreement is the~~ a valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber ~~or any of its subsidiaries~~ is a 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 reasonably be expected to have a 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 (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 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is ~~(a)~~ 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, (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 IA, (ii) is acquiring all of the ~~Subscribed Shares~~ Securities only for his, her or its own account 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 ~~Subscribed 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 (iii) is acquiring the Securities 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 (iii) 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 the laws of any jurisdiction (and shall provide the requested information set forth on Schedule ~~I following the signature page hereto~~A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed Shares~~Securities. 2.1.5 Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Securities have not been registered under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities may not be resold, transferred, 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 the ~~Issuer~~ 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 cases (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~~ book entries representing the ~~Subscribed Shares~~ Securities shall contain a restrictive legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber ~~acknowledges~~ understands and agrees that the ~~Subscribed Shares~~ Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed Shares~~ Securities will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~independent legal~~ legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or ~~transfer~~ other disposition 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 SharesSecurities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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 Subscriber represents and warrants that ~~its acquisition and holding of the Subscribed Shares will~~ (i) it is not ~~constitute or result in~~ a ~~non-exempt prohibited transaction under Section 406 of~~ Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the 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 ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties~~ warranties, and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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 ~~Subscribed Shares~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the 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 ~~respect~~ 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 ~~Issuer, Paysafe, the SPAC and the Transactions~~Commission. Subscriber represents and agrees that Subscriber and ~~Subscriber’s~~ its 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~~ the Company’s management questions, receive such 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 ~~Subscribed Shares~~Securities. The Subscriber ~~represents~~ further acknowledges that the information contained in the Disclosure Documents is subject to change, 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~~ that any changes to the ~~Transactions~~information contained in the Disclosure Documents, ~~the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects~~ including any changes based on updated information or changes in terms of the ~~Issuer~~Transaction, ~~Paysafe~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the ~~SPAC~~Securities, ~~including but~~ Subscriber is not ~~limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9~~ relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (ai) ~~each~~ it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement ~~Agents~~ 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 ~~acting solely as placement agent~~ 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 ~~Transactions~~ offer and is 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 ~~acting as an underwriter~~ be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or ~~in any other capacity~~ hereafter taken or omitted to be taken by it 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 Subscriber’s purchase 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 TransactionsSecurities. ~~2.1.10~~ 2.1.9 Subscriber became aware of this offering of the ~~Subscribed Shares~~ Securities solely (a) by means of direct contact from the Placement Agent, the Company, Nauticus or a representative of the Placement Agent, the Company or Nauticus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Issuer,~~ Placement Agent or the ~~SPAC or one of their respective representatives~~Company. Subscriber did not become aware of this offering of the ~~Subscribed Shares~~Securities, nor were the ~~Subscribed Shares~~ Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Issuer~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Subscribed Shares~~ Securities (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, 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 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 Securities, and 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 the investment in the Securities, has analyzed and fully considered the risks of an investment in the 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 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 ~~Subscribed Shares~~ Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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~~ 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 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) 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 any 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 (~~iii~~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. If 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”), ~~Subscriber represents~~ that it 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 for the screening of its investors against the OFAC sanctions programs, including the OFAC 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 ~~Subscribed Shares~~ Securities were legally derived. ~~2.1.13 If Subscriber is an employee benefit plan that is subject~~ 2.1.14 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”)Section 3.1, Subscriber ~~represents and warrants that none of~~ will have sufficient immediately available funds to pay the ~~Issuer, the SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect~~ Purchase Price pursuant 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)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 ~~not a foreign person~~ applicable to Subscriber or any of its Rule 506(d) 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) ~~and that will acquire a substantial in~~or (d)(3) is appli

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer to issue~~ issuance of the Subscribed Shares, Subscriber hereby represents and warrants to the ~~Issuer~~ Company and the ~~SPAC~~ Placement Agents and acknowledges and agrees with the ~~Issuer~~ Company and the ~~SPAC~~Placement Agents, as of the date hereof and as of the 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 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~~ 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 ~~other parties hereto~~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 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~~ 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 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 pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 2.1.4. Subscriber (i) is (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 (13) 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, (bc) is an ~~Institutional Account~~ “institutional account” (as defined in ~~FINRA~~ 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 (ce) 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 ~~Subscriber’s~~ its participation in the ~~purchase of the Subscribed Shares~~Subscription, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) 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~~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 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 (~~iii~~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 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 an entity formed for~~ aware that there are substantial risks incident to the ~~specific purpose~~ purchase and ownership of ~~acquiring~~ 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 investment in 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing~~ 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 resold except as permitted under the 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule ~~144~~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, 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 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~~ able at this time and in the ~~Subscribed Shares directly from~~ foreseeable future to bear the ~~Issuer~~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~~ a possibility of total loss exists. 2.1.7. If Subscriber ~~by the Issuer~~is a Canadian Person, the ~~SPAC or any of their respective officers or directors~~Subscriber acknowledges that, ~~expressly or by implication~~notwithstanding anything herein to the contrary, ~~other than those representations~~including Section 2.1.6, ~~warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of~~ 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 ~~constitute~~ 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 ~~result~~ the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in ~~a non-exempt prohibited transaction~~ Rule 16a-1 under ~~Section 406~~ 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”), (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 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 ~~applicable other~~ 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”). 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC and the 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 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~~ (iiiv) 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, the SPAC or 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. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any applicable state securities laws. 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 Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares. 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 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (~~each~~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 ~~Issuer, the SPAC nor~~ Company or any of ~~their respective~~ 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. ~~2.1.14 Except~~ 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 representations, warranties and covenants of the Company contained in 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 ~~expressly disclosed~~ placement agents, the “Placement Agents”)), other than the Company and its representatives concerning 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 ~~a Schedule 13D or Schedule 13G (or amendments thereto) filed by such~~ order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company. 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 ~~United States Securities~~ Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such answers and ~~Exchange Commission~~ obtain such information as Subscriber and 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 (~~the “Commission”~~including professional advice it deems appropriate) with respect to the ~~beneficial ownership~~ Subscription, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the ~~SPAC~~Company, 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 ~~common stock,~~ due diligence review of the offering of the Subscribed Shares and of the Company. 2.1.12. Subscriber acknowledges and 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 ~~currently~~ 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 Company or any other person or entity in connection with the Subscription, (ii) the Placement Agents have not made and ~~at all times through Closing~~ will ~~refrain from being~~ not make any representation or ~~becoming~~warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) ~~a member~~ the Placement Agents will have no responsibility to Subscriber with respect to any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of ~~a “group”~~ the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (~~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 ~~disposing of equity securities~~ any control persons, officers, directors, employees, partners, agents or representatives of the ~~Issuer~~ Placement Agents or ~~the SPAC~~ their respective affiliates, shall have no liability or obligation (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inincluding without lim

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber at the Closing, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ GOGN and acknowledges and agrees with the Issuer and ~~the SPAC, as of the date hereof and as of the 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 (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) 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~~deliver, ~~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 (including the transactions contemplated herein) 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 ~~other parties hereto~~Issuer and GOGN, 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) 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 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~~ Subscriber, 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 reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ability of, or prevents, impairs, delays or impedes the legal authority of of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription 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~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ 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 ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4~~ 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 execution, delivery and performance of this Subscription Agreement. 2.1.6 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) of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule I attached hereto, (bii) an ~~Institutional Account~~ “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) 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”), (iv) 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”), (v) acquiring the Shares only for its own account 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, and agreements herein on behalf of each owner of each such account, and (cvi) 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). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.7 Subscriber is a sophisticated ~~institutional~~ investor, experienced in investing in securities 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~~ and has exercised independent judgment in evaluating its 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, 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, 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 (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares. ~~2.1.5~~ 2.1.8 Subscriber understands that the ~~Subscribed~~ 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 ~~Subscribed~~ 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 ~~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 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 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 (if any) shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, ~~pledge~~ pledge, or transfer of any of the ~~Subscribed~~ Shares. By making the representations herein, Subscriber ~~has determined based on its own independent review and such professional advice as it deems appropriate that its purchase~~ does not agree to hold any of the ~~Subscribed~~ Shares ~~are~~ 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 ~~suitable investment for Subscriber, notwithstanding~~ registration statement or an exemption under the ~~substantial risks inherent in investing in or holding the Subscribed Shares~~Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants~~ covenants, or agreements made to Subscriber by the Issuer, GOGN, the ~~SPAC~~ Company, BTIG, LLC (“BTIG”), Sprott Capital Partners LP (“Sprott”) (BTIG and Sprott each, a “Placement Agent” and, together, the “Placement Agents”), or any of their respective ~~officers~~ affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, together with the Placement Agents, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, ~~covenants~~ 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~~ 2.1.10 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. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) 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”), 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 to such provisions of ERISA or the Code~~ Similar Law (~~collectively, “Similar Laws”~~as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Subscribed~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and GOGN’s representations, warranties and ~~covenants of the Issuer~~ agreements in Section 2.2 and ~~the SPAC contained in this Subscription Agreement~~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 (including Credit Suisse Securities (USA) LLC~~any Non-Party Affiliate concerning the Issuer, ~~▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents~~GOGN, the ~~“Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer~~ Company or the ~~SPAC or the Subscribed Shares or~~ Shares, the offer and sale of the ~~Subscribed~~ 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 ~~Subscribed~~ Shares, including with respect to the Issuer, ~~Paysafe~~GOGN, the ~~SPAC~~ 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 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 ~~Transactions~~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 ~~(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~~ necessary, without reliance on the Placement Agents, to make an investment decision with respect to the ~~Subscribed~~ 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 ~~represents~~ has deemed appropriate, Subscriber has independently made its own analysis and ~~warrants it~~ 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 ~~you deem~~ it deems appropriate) with respect to the ~~Transactions~~Issuer, GOGN, the ~~Subscribed~~ Company or the Shares, the offer and sale of the Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that neither the Placement Agents nor any of their affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “Representatives”) have made any independent investigation with respect to the Issuer, GOGN, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer, GOGN or the Company or any of their respective subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Issuer’s or GOGN’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) 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 their decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe,~~ Shares 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~~ (aii) ~~each of~~ neither the Placement Agents ~~is acting solely as placement agent~~ nor any of their affiliates have prepared any disclosure or offering document in connection with the ~~Transactions~~ offer 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 sale 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 TransactionsShares. ~~2.1.10~~ 2.1.14 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact between ~~Subscriber~~ Subscriber, on the one hand, and the Issuer, ~~the SPAC~~ GOGN or ~~one of~~ their respective ~~representatives~~representatives (including the Placement Agents), on the other hand. The Shares were offered to Subscriber solely by such direct contact. 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 it by any form of general solicitation or general advertising, including methods described in ~~section~~ Section 502(c) of Regulation D under the Securities ~~Act~~ Act, and (ii) ~~assuming the representations and warranties of the Issuer are true and correct in all material respects,~~ 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,~~ Act or any other applicable ~~state~~ securities laws. ~~2.1.11~~ 2.1.15 Subscriber ~~understands~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ~~agrees that no federal or state agency~~ ownership of the Shares, including those set forth in the GOGN SEC Documents (as defined below). Subscriber is a sophisticated institutional investor, is able to fend for itself in the transactions contemplated herein, has ~~passed upon or endorsed~~ such knowledge and experience in financial and business matters as to be capable of evaluating the merits ~~of the offering of the Subscribed Shares or made any findings or determination as to the fairness~~ and risks of an investment in the ~~Subscribed~~ Shares~~. 2.1.12~~ . Subscriber ~~represents and warrants~~ acknowledges that Subscriber ~~is not (i)~~ shall be responsible for any of Subscriber’s tax liabilities that may arise as 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 result of the ~~United States and administered~~ transactions contemplated 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. 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 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.13 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inthis Subscript

Appears in 1 contract

Sources: Subscription Agreement (GoGreen Investments Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC~~ Company and acknowledges and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or or, if Subscriber is not an individual, any of its subsidiaries is a party or by which Subscriber or 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 or, if Subscriber is not an individual, any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on~~ materially 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 (a “Subscriber Material Adverse Effect”),~~ 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~~ subsidiaries; 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 or, if Subscriber is not an individual, any of its subsidiaries or any of their respective properties that would reasonably be expected to ~~have a~~ materially affect the ability or legal authority of Subscriber ~~Material Adverse Effect~~to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (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 “accredited investor” (within the meaning of Rule 501(a) 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 IA, (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 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 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 (iii) 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~~ Act. Subscriber has completed Schedule I A following the signature page ~~hereto)~~hereto and the information contained therein is accurate and complete. 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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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-entry notations representing the ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the ~~Issuer~~Company, ~~the SPAC~~ Sabre or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company expressly set forth in this Subscription Agreement. 2.1.7 As of the date of this Subscription Agreement, 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 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 ~~other federal~~similar law, ~~state, local, non-U.S. or other~~ to the extent such laws ~~or regulations that~~ are ~~similar~~ applicable to ~~such provisions of ERISA or the Code (collectively, “Similar Laws”)~~Subscriber. 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 representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed SharesSubscriber. Subscriber acknowledges and agrees that Subscriber has received 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, Paysafe, the SPAC~~ Company and the ~~Transactions~~Transaction. 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 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~~Company or Credit Suisse Securities (USA) LLC (the “Placement Agent”). Subscriber and/or its investment manager or adviser has a pre-existing substantive relationship with the Company or the Placement Agent, and the ~~SPAC~~ Shares were offered to Subscriber solely by direct contact between Subscriber and the Company or ~~one of their respective representatives~~the Placement Agent. 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 by any form of general 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, or any ~~applicable~~ 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in connection with the issuance and purchase of the Shares. 2.1.11 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 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) owned or controlled by, or acting on behalf of, a person that is named on the 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 (~~iii~~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. If 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 ~~represents that 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 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. ~~2.1.13~~ 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~~ 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 (collectively, “Similar ~~Laws~~ Laws”), 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) none of the ~~Issuer~~Company, ~~the SPAC~~ Sabre nor any of their respective employees, representatives or 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; (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. ~~2.1.14~~ 2.1.15 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~~Company’s Class A common ~~stock~~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 or disposing of equity securities of the ~~Issuer or the SPAC~~ Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~. 2.1.15~~ ; provided that 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 inmakes no representation with respect to whether Subscribe

Appears in 1 contract

Sources: Subscription Agreement (Healthcare Merger Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Purchased Securities to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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~~ 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 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 pursuant to the terms of any indenture, mortgage, ~~charge,~~ deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a~~ prevent or delay Subscriber’s timely performance of any of its material ~~adverse effect on the legal authority of Subscriber to enter into and timely perform its~~ obligations under this Subscription 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~~ subsidiaries; or (iii) subject to receipt of required regulatory approvals, if any, 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber (i) is ~~(a)~~ 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~~, (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 IA, (ii) is acquiring the ~~Subscribed Shares~~ Purchased Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the ~~Subscribed 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, 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 (iii) is not acquiring the ~~Subscribed 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 A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed 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 ~~Subscribed Shares~~ Purchased Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Subscribed Shares~~ Purchased Securities have not been registered under the Securities Act. Subscriber understands that the ~~Subscribed Shares~~ Purchased Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act, except (i)~~ Act with respect to the ~~Issuer~~ 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 cases (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 ~~Subscribed Shares~~ Purchased Securities shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed 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 ~~Subscribed Shares~~ Purchased Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed Shares~~ Purchased Securities and may be required to bear the financial risk of an investment in the ~~Subscribed Shares~~ Purchased 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 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 SharesPurchased Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Purchased Securities directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Subscribed Shares~~ Purchased 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”)~~amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended (the “Code”)~~amended, or any applicable ~~other 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”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Purchased Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the ~~Issuer and the SPAC~~ Company contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Subscribed Shares, including with respect~~ Purchased Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the ~~Issuer, Paysafe~~Subscriber’s investment in the Purchased Securities. Without limiting the generality of the foregoing, the ~~SPAC and~~ Subscriber acknowledges that it has reviewed the ~~Transactions~~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 ~~(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 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 ~~Subscribed Shares~~Purchased Securities. The Subscriber ~~represents~~ acknowledges that it has not relied on any statements or other information provided by ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPM”) and ~~warrants it is relying exclusively on its own sources~~ Global Leisure Partners LLC (“GLP” and, together with JPM, the “Placement Agents”) or any of ~~information, investment analysis and due diligence (including professional advice you deem appropriate)~~ the Placement Agents’ affiliates with respect to its decision to invest in the ~~Transactions~~Purchased Securities, including information related to the Company, the ~~Subscribed Shares~~ Purchased Securities and the ~~business, condition (financial~~ offer and ~~otherwise), management, operations, properties and prospects~~ sale of the ~~Issuer, Paysafe, and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters~~Purchased Securities. 2.1.9 Subscriber became aware of this offering of the Purchased Securities by means of direct contact from the Placement Agents in the case of institutional accredited investors, and/or directly from the Company or ▇▇▇▇▇▇▇ Group as a result of a pre-existing, substantial relationship with the Company or ▇▇▇▇▇▇▇ Group, and the Purchased Securities were offered to Subscriber solely by direct contact between Subscriber and any of the Placement Agents, the Company or ▇▇▇▇▇▇▇ Group. Subscriber did not become aware of this offering of the Purchased Securities, nor were the Purchased Securities offered to Subscriber, by any other means. Subscriber acknowledges ~~and agrees~~ that (a) the Placement Agents have not acted as its financial advisor or fiduciary, (b) each of the Placement Agents is acting solely as placement agent ~~in connection with~~ to the ~~Transactions~~ Company 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~~ or as a fiduciary for ~~Subscriber~~ the Company, ▇▇▇▇▇▇▇ Group or any other person or entity in connection with the ~~Transactions~~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 by any form of general solicitation or general advertising 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 and agrees that (ba) 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~~Transaction, (cb) 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~~ 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, ~~condition (~~affairs, financial ~~and otherwise), management~~condition, operations, properties or prospects of, or any other matter concerning the ~~Issuer~~Company, ~~Paysafe, the SPAC~~ ▇▇▇▇▇▇▇ Group or the ~~Transactions~~Transaction, and (dc) the Placement Agents ~~shall~~ 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 ~~Issuer, the SPAC~~ 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 ~~Transactions~~Transaction. 2.1.10 Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer, the SPAC or 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. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~Issuer represents~~ purchase and ~~warrants~~ ownership of the 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 Purchased Securities, and 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 the ~~Subscribed Shares~~ purchase and sale of the Purchased Securities hereunder meets (i) ~~were not offered by any form of general solicitation or general advertising~~the exemptions from filing under FINRA Rule 5123, ~~including methods described in section 502(c) of Regulation D under the Securities Act and~~ (ii) ~~assuming~~ the ~~representations~~ institutional customer exemption under FINRA Rule 2111(b) and ~~warranties~~ (iii) the institutional account exemption under FINRA Rule 4512(c). 2.1.12 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 ~~Issuer~~ investment in the Purchased Securities, has adequately analyzed and fully considered the risks of an investment in the Purchased Securities and determined that the Purchased Securities are ~~true~~ a suitable investment for Subscriber and ~~correct~~ that Subscriber is able at this time and in ~~all material respects, are not being offered~~ the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a ~~manner involving a public offering under, or~~ possibility of total loss of investment exists and that it is able to fend for itself in ~~a distribution in violation of,~~ the ~~Securities Act, or any applicable state securities laws~~transactions contemplated herein. ~~2.1.11~~ 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 ~~Subscribed Shares~~ Purchased Securities or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Purchased Securities were legally derived. ~~2.1.13 If~~ 2.1.15 Subscriber has, and at the Closing will have, sufficient funds 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 ~~an employee benefit plan that~~ 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 ~~subject to Title I~~ applicable. For purposes of ~~ERISA~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a ~~plan, an individual retirement account~~ person or ~~other arrangement that is subject to section 4975 of the Code or an employee benefit plan~~ 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 Similar Laws or~~ an ~~entity whose underlying assets are considered to include~~ institutional “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 “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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1~~13) under the ~~Exchange~~ Securities Act), only GLP is acting as the Company’s Placement Agent with respect to such offers and sales. 2.1.15 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 in

Appears in 1 contract

Sources: Subscription Agreement (Aldel Financial Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Issuer~~ PubCo to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC~~ PubCo and acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~Closing, as follows: 2.1.1 ~~If Subscriber is not an individual,~~ Subscriber has been duly formed or incorporated and is validly existing 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 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 other parties hereto, then this Subscription Agreement is the valid and binding obligation of 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 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 (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 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~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is a party or by which Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on ~~the legal authority~~ Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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~~ subsidiaries, as applicable, 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 ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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, ” 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 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 federal securities laws of the United States or any other applicable jurisdiction ~~and (iii) 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 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~~ Act, and that the ~~Subscribed~~ Shares have not been registered under the Securities Act. Subscriber understands that (A) the ~~Subscribed~~ 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 the ~~Issuer~~ 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~~ Act, (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 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 ~~Subscribed~~ Shares shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ 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 ~~Subscribed~~ Shares will be subject to the foregoing restrictions and, as a ~~result~~result of these 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 ~~independent~~ legal counsel prior to making any offer, resale, 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 ~~the Issuer~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ~~the SPAC~~ PubCo, 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. 2.1.7 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 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 other 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”). 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 representations, warranties~~ its own investment analysis and covenants of the Issuer and the SPAC contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone due diligence (including ~~Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”~~professional advice it deems appropriate)~~), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares~~. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to ~~the Issuer, Paysafe~~PubCo, the ~~SPAC~~ Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to 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 ~~(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 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~~ further acknowledges that the information provided to Subscriber (other than the information expressly set forth in the representation and ~~warrants it~~ warranties made by the Issuer herein) is ~~relying exclusively on its own sources of information, investment analysis~~ preliminary and ~~due diligence (including professional advice you deem appropriate) with respect~~ subject 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 matterschange. 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 2.1.8 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from the Issuer or PubCo or their respective representatives as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer, PubCo or their respective representatives, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the ~~Issuer, the SPAC~~ Issuer or ~~one of~~ PubCo or 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 it did not become aware of this offering of the ~~Issuer represents and warrants that the Subscribed~~ Shares (i) ~~were not offered~~ by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities ~~Act~~ 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, or any ~~applicable~~ state securities laws. 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.10 Alone, or together with any professional advisor(s), 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 the Shares. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. 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 (“SDN List”) 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~~ otherwise blocked by any OFAC sanctions ~~program, (ii) a Designated National as defined in~~ program or 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~~Department of State. 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. If 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 ~~represents that it~~ 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 for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ 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 ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 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 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of ~~the Issuer or the SPAC~~ 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. ~~2.1.15~~ 2.1.14 If 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~~ and is acquiring a substantial interest (as defined in 31 C.F.R. ~~Part~~ § 800.244) ~~and that will acquire~~ in PubCo, no national or subnational government of a single foreign state has a substantial ininterest (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 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 the ~~Issuer~~ Company to issue the ~~Subscribed Shares~~Units to Subscriber, Subscriber hereby represents and warrants to the ~~Issuer and the SPAC and acknowledges~~ Company and agrees with the ~~Issuer and the SPAC, as of the date hereof and as of the Closing Date,~~ Company as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing 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~~ This Subscription Agreement ~~constitutes the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of 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 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 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 pursuant to to[1] the terms of any indenture, mortgage~~, charge~~, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to have a material adverse effect on the ~~legal authority~~ business, properties, financial condition, stockholders’ equity or results of operations of Subscriber ~~to enter into~~ and ~~timely perform~~ its ~~obligations under this Subscription Agreement~~ subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”), ) or materially affect the legal authority of Subscriber to 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~~ subsidiaries; 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 subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 Subscriber ~~(i)~~ is ~~(a) 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 of 1933, as amended (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 IA, (iii) is acquiring the ~~Subscribed Shares~~ Units 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, 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, 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 (~~iii~~ii) is not acquiring the ~~Subscribed 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 A 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~~ Units 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~~ Units may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the ~~Issuer~~ 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 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 representing the ~~Subscribed~~ Shares and Warrants shall contain a legend to such ~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~effect. Subscriber acknowledges that the ~~Subscribed~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Subscribed~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Subscribed~~ Shares and/or Warrants and may be required to bear the financial risk of an investment in the ~~Subscribed~~ Shares and Warrants 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 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~~and/or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed Shares~~ Units directly from the ~~Issuer~~Company. Subscriber further acknowledges that there have been no representations, warranties, covenants or and agreements made to Subscriber by the ~~Issuer, the SPAC~~ Company or any of ~~their respective~~ its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~expressly set forth~~ included in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that its acquisition and holding of the ~~Subscribed~~ Shares and 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”)~~amended, 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 ~~to such provisions of ERISA or the Code (collectively, “Similar Laws”)~~law. 2.1.8 In making its decision to purchase the ~~Subscribed Shares~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer and the SPAC contained in 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 and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed SharesSubscriber. Subscriber ~~acknowledges and agrees~~ represents that ~~Subscriber~~ it has received 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, Paysafe, the SPAC and the Transactions~~Units. 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 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 mattersUnits. 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, the SPAC or 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. Subscriber acknowledges that the ~~Issuer~~ Company represents and warrants that the ~~Subscribed Shares~~ Units (i) were not offered by any form of general solicitation or general ~~advertising, including methods described in section 502(c) of Regulation D under the Securities Act~~ advertising 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, or any ~~applicable~~ 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 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 Units, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.11 Alone, or together with any professional advisor(s), 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 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 ~~Subscribed Shares~~ Units or made any findings or determination as to the fairness of ~~an investment in the Subscribed Shares~~this investment. ~~2.1.12~~ 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 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~~ 515, or (iii) 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. If 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 ~~represents that 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed Shares~~ Units were legally derived. ~~2.1.13 If~~ 2.1.14 Subscriber ~~is an employee benefit plan~~ has, and at the Closing will have, sufficient funds to pay the applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents 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 no disqualifying event 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 Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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)(2Rule 506(d)(1)(i-viii) of the Securities ~~Exchange~~ Act ~~of 1934, as amended~~ (~~the~~ a “~~Exchange Act~~Disqualification Event”), ) is applicable to Subscriber or any ~~successor provision~~of its Rule 506(d) acting for the purpose of acquiring, holding or disposing of equity securities of the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 Subscriber is not a foreign person 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 ~~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 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 beneficial owner of Subscriber’s securities for purposes of Rule 506(d) 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) and that will acquire a substantial in~~Securities Act.

Appears in 1 contract

Sources: Subscription Agreement (Hycroft Mining Holding Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the ~~Subscribed Shares~~Shares to Subscriber, Subscriber hereby represents and warrants to the Issuer and ~~the SPAC and~~ acknowledges and agrees with the ~~Issuer and the SPAC~~Issuer, as of the date hereof and as of the ~~Closing Date~~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 ~~other parties hereto~~Issuer, then this Subscription Agreement is the valid and binding obligation of 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 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 (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 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 pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a 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 reasonably be expected to ~~have a material adverse effect on the legal authority~~ prevent or delay Subscriber’s timely performance of ~~Subscriber to enter into and timely perform~~ its obligations under this Subscription 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 or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber 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 “accredited investor” (within the meaning of Rule 501(a) 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, (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,~~ 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 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 (iii) 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 following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Subscribed~~ 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 ~~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 or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to 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 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 (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144)~~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 ~~the foregoing~~ transfer restrictions and, as a ~~result~~result of these transfer 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 independent legal counsel prior to making any offer, resale, 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~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Subscribed~~ Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the ~~SPAC~~ Company 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~~ 2.1.8 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 ~~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 ~~other 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”)~~law. ~~2.1.8~~ 2.1.9 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 representations, warranties and ~~covenants of the Issuer and the SPAC contained~~ agreements in ~~this Subscription Agreement~~Section 2.2 hereof. 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 ~~and the SPAC and their respective representatives~~ concerning the Issuer or the ~~SPAC or the Subscribed~~ Shares or the offer and sale of the ~~Subscribed~~ Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, 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 ~~Subscribed Shares,~~ Shares (including with respect to the Issuer, ~~Paysafe,~~ the ~~SPAC~~ Company and the 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 ~~(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 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~~ 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, Paysafe,~~ Issuer and the ~~SPAC~~Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters~~. 2.1.9~~ . Subscriber acknowledges that ▇. ▇▇▇▇▇ Securities, Inc. (the “Placement Agent”) and ~~agrees~~ 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 (ai) ~~each~~ it has not relied on any statements or other information provided by the Placement Agent or any of the Placement ~~Agents is acting solely as placement agent~~ 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 ~~Transactions~~ offer 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 sale of the ~~documents furnished pursuant thereto or in connection therewith, or~~ Shares. Subscriber further acknowledges that the ~~execution, legality, validity or enforceability (with respect~~ information provided to ~~any person) or any thereof, or (ii) the business, condition (financial~~ Subscriber is preliminary and ~~otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions~~subject to change, and ~~(d) the Placement Agents shall have no liability~~ that any changes to such information, including any changes based on updated information 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 changes in ~~contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect~~ terms of the ~~Transactions~~Transaction, shall in no way affect the Subscriber’s obligation to purchase the Shares hereunder. 2.1.10 Subscriber became aware of this offering of the ~~Subscribed~~ Shares solely by means of direct contact from either the Placement Agent or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives (including the Placement Agent), and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Placement Agent or the Issuer~~, the SPAC or 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. Subscriber acknowledges that the ~~Issuer represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Subscribed~~ Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in 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, or any ~~applicable~~ state securities laws. 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 and tax advice as Subscriber has considered necessary to make an informed investment decision. 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). 2.1.12 Alone, or together with any professional advisor(s), 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. 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 ~~Subscribed~~ Shares or made any findings or determination as to the fairness of an investment in the ~~Subscribed~~ Shares. ~~2.1.12~~ 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 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. If 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 ~~represents that it~~ 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 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 maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Subscribed~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. ~~2.1.13~~ 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 ~~Similar Laws~~ federal, state, local, non-U.S. or ~~an entity whose underlying assets~~ other laws or regulations that are ~~considered~~ similar to ~~include “plan assets”~~ such provisions of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that none of the Issuer, the SPAC nor any 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. 2.1.14 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 the Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.15 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 inERI

Appears in 1 contract

Sources: Subscription Agreement (Otonomo Technologies Ltd.)

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