Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes. (b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act. (c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof. (d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification. (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.
Appears in 2 contracts
Sources: Guarantee Agreement (Morgan Stanley), Guarantee Agreement (Viatel Holding Bermuda LTD)
Private Placement. (a) Such Person understands that (i) Axess is entering into this Agreement and acquiring the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is Preferred Stock Warrant in a transaction intended to be exempt from registration under the Securities Act pursuant to by virtue of the provisions of Section 4(2) thereof, of the Securities Act. Axess understands and (ii) there is no existing public or other market for acknowledges that the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A Preferred Stock and any Axess Conversion Shares must be held indefinitely unless subsequently registered under the Securities Act and any applicable state securities laws or (ii) unless an exemption from such registration becomes or is available. Axess is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
. Axess confirms that (ci) Such Person it is acquiring familiar with the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements business of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionCompany, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(eii) Such Person (A) has been furnished with or it has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management ask questions of Holding officers and directors of the intended business and financial affairs of Holding Company and to obtain information (to about the extent Holding possessed such information or could acquire business and financial condition of the Company as it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investmenthas reasonably requested, and (Diii) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its the prospective investment in the New Notes Securities. Axess acknowledges that all certificates representing the Preferred Stock Warrant, the Preferred Stock and any Axess Conversion Shares shall bear the following legend in addition to protect its own interest in connection with such investmentany other legend required under applicable law or any Ancillary Agreement: THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Magida Stephen A), Securities Purchase Agreement (Axess Corp)
Private Placement. (a) Such Person The Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Series A Preferred is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for the New NotesSeries A Preferred and there can be no assurance that the Purchaser will be able to sell or dispose of such Series A Preferred purchased by the Purchaser pursuant to this Agreement.
(b) Such Person The Series A Preferred to be acquired by the Purchaser pursuant to this Agreement are being acquired for the Purchaser's own account and without a view to the public distribution of such Series A Preferred or any interest therein.
(ic) The Purchaser is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.D.
(d) Such Person understands that The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the additional New Notes will be issued merits and risks of its investment in a transaction exempt from the registration or qualification requirements Series A Preferred and the Purchaser is capable of bearing the Securities Act and applicable state securities laws and that Holding's reliance on economic risks of such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationinvestment.
(e) Such Person (A) The Purchaser has been furnished with or and has had full access carefully read a copy of the Exhibits and Schedules to all this Agreement and has been given the information that it considers necessary or appropriate opportunity to make an informed ask questions of, and receive answers from, the Issuer concerning the Issuer and its Subsidiaries, the terms and conditions of the Series A Preferred and other related matters.
(f) The Purchaser acknowledges that, in making its investment decision with respect to the New NotesSeries A Preferred, it has not relied on (i) any drafts of the offering memorandum for the high yield offering contemplated by the Issuer and an affiliate of the Purchaser received to date, (Bii) has had an opportunity to discuss with management of Holding the intended 1997-2001 Econophone business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had accessplan, (Ciii) can bear Exhibit C hereto or (iv) the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in TELCO Global Communications TGC business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentplan.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Econophone Inc), Securities Purchase Agreement (Econophone Inc)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the additional New Notes pursuant Securities Act; (ii) aware that the sale of Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereofand that the Company is relying in part upon the truth and accuracy of, and such Investor’s compliance with, the representations, warranties, agreements, acknowledgments and covenants of such Investor set forth herein in order to determine the availability of such exemptions and the eligibility of such Investor to acquire the Shares and (iiiii) there acquiring Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in a manner that would violate the Securities Act. If such Investor is no existing public acquiring the securities as a fiduciary or other market agent for one or more accounts, such Investor represents that it has sole investment discretion with respect to each such account and it has full power to make the New Notesrepresentations, acknowledgements, covenants and agreements set forth herein on behalf of such account.
(b) Such Person (i) is Investor understands and agrees that the Shares are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been and, except as such term is defined in Rule 144A will be contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that the Shares may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States.
(c) Such Person is acquiring the additional New Notes Investor (i) has such sufficient knowledge and experience in financial and business matters as to be acquired pursuant capable of evaluating the merits and risks of its prospective investment in the Shares, and (ii) has the ability to Section 2.2(b) hereof for bear the economic risks of its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofprospective investment.
(d) Such Person understands Investor acknowledges that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements (i) it has conducted its own investigation of the Securities Act Company and applicable state securities laws the terms of the Shares, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Shares, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and receive answers thereto, each as it deemed necessary in connection with the decision to purchase the Shares. Each Investor further acknowledges that Holding's reliance on it has had such exemption opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is predicated upon sufficient for purposes of the Lenders' purchase of the Shares. The foregoing, however, does not limit or modify the representations contained herein. In additionand warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under any of the Securities Act other express terms and such laws or is exempt from such registration or qualificationconditions of this Agreement.
(e) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(f) Except for the representations and warranties contained in Section 2 of this Agreement, each Investor acknowledges that neither the Company nor any Person (A) on behalf of the Company makes, and such Investor has been furnished with not relied upon, any other express or has had full access to all the information that it considers necessary implied representation or appropriate to make an informed investment decision warranty with respect to the New Notes, (B) has had an opportunity Company or any of its Subsidiaries or with respect to discuss with management of Holding the intended business and financial affairs of Holding and to obtain any other information (provided to the extent Holding possessed Investors in connection with the transactions contemplated by this Agreement.
(g) Such Investor understands that upon the original issuance of the Shares, and until such information time as the same is no longer required under applicable requirements of the Securities Act or could acquire it without unreasonable effort applicable state securities laws, any certificates or expenseother instruments representing the Shares, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear customary legends referencing such restrictions on transferability, and that the Company will make a notation on its records and give instructions to any registrar or transfer agent of the Shares in order to implement the restrictions on transfer set forth and described herein.
(h) necessary to verify Such Investor understands that no U.S. or foreign government or regulatory authority or agency has passed on or made any information furnished to it recommendation or to which it had access, (C) can bear endorsement of the economic risk Shares or the fairness or suitability of (x) an the investment in the New Notes indefinitely and (y) a total loss in respect Shares nor have such authorities passed upon or endorsed the merits of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks offering of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentShares.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Summit Aviation Partners LLC), Securities Purchase Agreement (Fly Leasing LTD)
Private Placement. The Purchaser hereby represents and warrants to and agrees with the Vendor that:
(i) Neither the ADSs evidenced hereby nor the shares underlying such ADSs have been registered under the Securities Act and neither the ADSs nor the shares may be offered, sold, pledged or otherwise transferred except (a) Such Person understands that (i1) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof a transaction that in the opinion of counsel reasonably satisfactory to the Vendor is intended to be exempt from registration under the Securities Act or (2) pursuant to Section 4(2an effective registration statement under the Securities Act and (b) thereofin accordance with all applicable securities laws of the states of the United States. In addition, the shares underlying the ADSs evidenced hereby may be offered and sold in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S under the Securities Act;
(ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) It is a "“qualified institutional buyer," ” as such term is defined in Rule 144A under the Securities Act or (iia “QIB”) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.;
(ciii) Such Person It is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Firm ADSs for its own account (or for one or more accounts over (each of which is a QIB and as to each of which it exercises sole investment authority)discretion and for each of which it has full power to make the acknowledgments, for investment representations and agreements herein) and not with a view to the to, or for sale in connection with, any public resale or distribution thereof.;
(div) Such Person It understands that the additional New Notes no offering circular or prospectus will be issued provided or prepared in a transaction exempt from connection with the registration or qualification requirements offer and sale of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.Firm ADSs;
(ev) Such Person (A) It has been furnished with conducted its own investigation of the Firm ADSs and the Vendor has not made any representation to it, express or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision implied, with respect to the New Notes, Firm ADSs or the Company. It has received and reviewed all financial and other information that it believes is necessary or appropriate in connection with its decision to purchase the Firm ADSs;
(Bvi) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire It represents that it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in financial and business and financial matters so (including investments in unregistered equity securities of non-U.S. issuers) as to enable it to understand and evaluate the risks merits and risk of and form an investment decision with respect to its investment in the New Notes Firm ADSs and that it and any accounts for which it is acting is able to protect its own interest bear the economic risk of investing in connection with and holding such investment.Firm ADSs;
(vii) It understands that the Firm ADSs are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act;
(viii) It understands that no representation is being made as to the availability of Rule 144 or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Firm ADSs;
Appears in 2 contracts
Sources: Stock Purchase Agreement (Repsol Ypf Sa), Stock Purchase Agreement (Repsol Ypf Sa)
Private Placement. The Purchaser hereby represents that:
(a) Such Person The Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Warrants is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(b) To the extent that the Purchaser has employed any investment banker, broker or finder or incurred any liability for any brokerage fees, commissions or finder's fees in connection with the transactions contemplated by this Agreement, the Purchaser shall be responsible for the payment of any such fees or commissions.
(c) Such Person The Purchaser understands that the Warrants have not been, and will not be, registered under any securities laws, state or federal; that the Warrants must be held indefinitely unless they are subsequently registered under applicable securities laws or an exemption from such registration is acquiring available; that the additional New Notes Company is under no obligation to register the Warrants or in complying with any exemption from registration. In addition, the Purchaser understands that the Warrant Shares have not been, and may not be, registered under any securities laws, state or federal; that the Warrant Shares must be acquired pursuant held indefinitely unless they are subsequently registered under applicable securities laws or an exemption from such registration is available; that except as provided in this Agreement, the Company is under no obligation to Section 2.2(b) hereof for its own account (register the Warrant Shares or for accounts over which it exercises investment authority), for investment and not to assist in complying with a view to the resale or distribution thereofany exemption from registration.
(d) Such Person understands The Purchaser agrees that it will not transfer, by way of gift or otherwise, or sell the additional New Notes will be issued in a transaction exempt from Warrants or any part thereof or the registration Warrant Shares, unless such Warrants or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionWarrant Shares, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is as applicable, have been registered or qualified under the Securities Act and or it first obtains, at its own expense, an opinion of counsel reasonably satisfactory to the Company that the transfer of such laws Warrants or is exempt from Warrant Shares may be effected without registration under the Securities Act, provided that no opinion shall be necessary to effect a transfer to affiliates of the Purchaser, to the extent the Purchaser or such registration or qualificationperson confirms the representations set forth in this Section 13.
(e) Such Person The Purchaser is not acquiring the Warrants as a result of (Ai) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio or (ii) any seminar meeting whose attendees had been invited as a result of, subsequent to, or pursuant to any of the foregoing.
(f) The Purchaser understands that there will be no public market for the Warrants.
(g) The Purchaser (i) has been furnished with or carefully evaluated the risks of investing in the Company, (ii) has had full access no need for liquidity in this investment, and (iii) should it decide to all exercise the Warrants, will be able to bear the substantial economic risks of an investment in the Warrant Shares.
(h) The Purchaser has sufficient knowledge and experience in financial, tax and business matters to enable him to utilize the information that it considers necessary or appropriate made available to him in connection with the purchase of the Warrants, to evaluate the merits and risks of the prospective investment and to make an informed investment decision with respect thereto.
(i) The Purchaser acknowledges that the Company is relying upon the representations and warranties contained herein in determining to make the sale of the Warrants, and the Purchaser consents to such reliance.
(j) The Purchaser has received and carefully reviewed financial information pertaining to the New NotesCompany, (B) has had an a reasonable opportunity to discuss with management ask questions of Holding and receive answers from the intended Company and its directors, officers and employees concerning the Warrants and the business and financial affairs of Holding and to obtain information (the Company, and, all such questions have been answered to the extent Holding possessed such information full satisfaction of the Purchaser. No oral representations have been made or could acquire it without unreasonable effort or expense) necessary to verify any oral information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentthe sale of Warrants which were in any way relied upon by the Purchaser.
Appears in 2 contracts
Sources: Warrant Agreement (Level 3 Communications Inc), Warrant Agreement (Level 3 Communications Inc)
Private Placement. (a) Such Person understands that (i) SNH is (A) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”); (B) aware that the sale of the additional New Notes pursuant FVE Common Stock to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2and (C) thereof, and acquiring the FVE Common Stock for its own account.
(ii) there SNH understands and agrees that the FVE Common Stock is no existing being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the FVE Common Stock has not been registered under the Securities Act and that the FVE Common Stock may be offered, resold, pledged or other market for otherwise transferred only (A) in a transaction not involving a public offering, (B) pursuant to an exemption from registration under the New NotesSecurities Act, or (C) to Five Star or one of its subsidiaries, in each of cases (A) through (C) in accordance with any applicable securities laws of any State of the United States, and that it will notify any subsequent purchaser of the FVE Common Stock from it of the resale restrictions referred to above, as applicable.
(biii) Such Person (i) is SNH understands that, unless sold pursuant to a "qualified institutional buyer," as such term is defined in Rule 144A registration statement that has been declared effective under the Securities Act or (iiin compliance with Rule 144 promulgated thereunder, Five Star may require that the FVE Common Stock will bear a legend or other restriction substantially to the effect provided in Section 14(a) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Acthereof.
(civ) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.SNH:
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access is able to all fend for itself in the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, transactions contemplated hereby;
(B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes FVE Common Stock; and
(C) has the ability to protect bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(v) SNH acknowledges that (A) it has conducted its own interest investigation of Five Star and the terms of the FVE Common Stock, (B) it has had access to Five Star’s public filings with the Securities and Exchange Commission and to such financial and other information as it deems necessary to make its decision to purchase the FVE Common Stock, and (C) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of Five Star and its subsidiaries and to ask questions of Five Star and received answers thereto, each as it deemed necessary in connection with the decision to purchase the FVE Common Stock. SNH further acknowledges that it has had such investmentopportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the FVE Common Stock.
(vi) SNH understands that Five Star will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Appears in 2 contracts
Sources: Lease Realignment Agreement (Five Star Quality Care Inc), Lease Realignment Agreement (Senior Housing Properties Trust)
Private Placement. (a) Such Person Purchaser understands that (i) the offering and sale of the Notes in the Issuance by the Company and the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is Warrants by the Company are intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and Regulation D thereof and (ii) there is no existing public or other market for the New NotesNotes or the Warrants.
(b) Such Person Purchaser (ieither alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Notes and the Warrants and is a "qualified institutional buyer," as capable of bearing the economic risks of such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Actinvestment.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person Purchaser understands that the additional New Notes and the Warrants will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws laws, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(ed) Such Person Purchaser (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesNotes and the Warrants and that it has requested from the Company, (B) has had an opportunity to discuss with management of Holding the Company the intended business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, access and (C) can bear the economic risk of (x) an investment in the New Notes and the Warrants indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes and the Warrants and to protect its own interest in connection with such investment; it being understood that nothing set forth in this Section 4.4(d) shall affect the representations, warranties or other obligations of the Company, or the rights and remedies of such Purchaser, under this Agreement in any way whatsoever.
Appears in 2 contracts
Sources: Note Purchase Agreement (Aurora Foods Inc /De/), Note Purchase Agreement (Fenway Partners Capital Ii L P)
Private Placement. (a) Such Person Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New NotesAct.
(b) Such Person (i) Purchaser represents and warrants that it is a "qualified institutional buyer," as such term is defined in Rule 144A under acquiring the Securities Act to be purchased by it pursuant to this Agreement for investment for such Purchaser's own account and not with a view to the resale or (ii) distribution of such Securities or any interest therein other than in a transaction that is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D registered or exempt from registration under the Securities Act.
(c) Such Person Purchaser represents and warrants that it is acquiring an "accredited investor" as such term is defined in Regulation D under the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofSecurities Act.
(d) Such Person understands Purchaser represents and warrants that it (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the additional New Notes will be issued merits and risks of its investment in the Securities, and is capable of bearing the economic risks of such investment, including a transaction exempt from the registration or qualification requirements complete loss of its investment in the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must to be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationpurchased by it hereunder.
(e) Such Person (A) Purchaser has been given the opportunity to ask questions of, and receive answers from, the Company regarding the Company, the terms and conditions of the Securities and related matters, and has been furnished with or has had full access to all the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Securities.
(f) Such Purchaser understands that the Securities that it considers necessary or appropriate to make an informed investment decision with respect to is purchasing are characterized as "restricted securities" under the New NotesSecurities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under the Securities Act and applicable regulations, such Securities may be resold without registration under the Securities Act only in certain limited circumstances. It is understood that the certificates delivered at Closing evidencing the Securities will bear a restrictive legend.
(Bg) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had accessSuch Purchaser has, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentits decision to purchase the Securities, relied solely upon the 34 Act Reports and the representations and warranties of the Company contained herein.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Lifecell Corp), Securities Purchase Agreement (Lifecell Corp)
Private Placement. (a) Such Person Investor understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof Warrant Shares, the Series C Warrants and the Series D Warrants by the Company is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person Investor (i) is a "qualified institutional buyer," (as such term is defined in Rule 144A under the Securities Act Act) or (ii) is an institutional "accredited investor," (as such term is defined in Rule 501(a) of Regulation D under the Securities Act).
(c) Such Person Investor is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Warrant Shares, the Series C Warrants and the Series D Warrants for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofthereof in violation of any securities law.
(d) Such Person Investor understands that the additional New Notes Warrant Shares, the Series C Warrants and the Series D Warrants will be issued in a transaction Transactions exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws laws, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such state securities laws or is exempt from such registration or qualification.
(e) Such Person Investor (Ai) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesWarrant Shares, the Series C Warrants and the Series D Warrants and that it has requested from the Company, (Bii) has had an opportunity to discuss with management of Holding the Company the intended business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, and (Ciii) can bear the economic risk of (xA) an investment in the New Notes Warrant Shares, the Series C Warrants and the Series D Warrants indefinitely and (yB) a total loss in respect of such investment, and (Div) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Warrant Shares, the Series C Warrants and the Series D Warrants and to protect its own interest in connection with such investment. Such Investor has made the decision to make such investment based on its review of all information it deems relevant and has not relied on any advice, recommendation or information provided by the Company's financial advisor.
Appears in 2 contracts
Sources: Backstop Agreement (Warburg Pincus LLC), Backstop Agreement (Avaya Inc)
Private Placement. (a) Such Person understands that Great Elm is (i) an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the issuance Securities Act and (ii) a “qualified purchaser” as that term is defined in the Investment Company Act.
(b) The shares of Newco acquired by Great Elm pursuant to this Agreement are being acquired for Great Elm’s own account, only for investment purposes and not with a view to, or for resale in connection with, any public distribution or public offering in violation of the additional New Notes Securities Act.
(c) Great Elm understands and acknowledges that the offering of the shares of Newco Common Stock pursuant to Section 2.2(b) hereof this Agreement will not be registered under the Securities Act on the grounds that the offering and sale of such shares is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) 506 of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired thereof and exempt from registration pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities or blue sky laws and that Holding's reliance on such exemption is predicated upon and, therefore, the Lenders' representations contained herein. In addition, such Person understands that such securities must shares of Newco Common Stock acquired hereunder will be held indefinitely unless a subsequent disposition thereof is registered or qualified characterized as “restricted securities” under the Securities Act and such other laws and may not be sold unless such shares are subsequently registered under the Securities Act and qualified under state law or is exempt unless an exemption from such registration or qualificationand such qualification is available.
(ed) Such Person Great Elm: (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in shares of Newco Common Stock; (ii) has the New Notes ability to protect bear the economic risks of its own interest prospective investment; and (iii) has not been offered the shares of Newco Common Stock by any form of advertisement, article, notice, or other communication published in connection with any newspaper, magazine, or similar medium; or broadcast over television or radio; or any seminar or meeting whose attendees have been invited by any such investmentmedium.
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement
Private Placement. (a) Such Person understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof and the Special Share is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes and/or the Special Share, as the case may be, to be acquired pursuant to Section 2.2(bhereunder (and will acquire the Conversion Shares) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes and the Special Share will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holdingthe Company's reliance on such exemption is predicated upon the LendersPurchasers' representations contained herein. , In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesNotes and the Special Share, (B) has had an opportunity to discuss with management of Holding the Company the intended business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, and (C) can bear the economic risk of (x) an investment in the New Notes and the Special Share indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes and the Special Share to protect its own interest in connection with such investment.
(f) Such Person acknowledges that the Notes, Special Share and Conversion Shares shall, to the extent appropriate, bear the respective restrictive legends set forth in Section 6.5 of the Shareholders Agreement.
Appears in 2 contracts
Sources: Investment and Note Purchase Agreement (Morgan Stanley), Investment and Note Purchase Agreement (Viatel Holding Bermuda LTD)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes Preferred Shares, and the Conversion Shares issuable upon conversion of the Series C Preferred Shares being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof to it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption The Investor: (i) is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated by this Agreement; (y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the SEC Reports), the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investors in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Image Entertainment Inc), Securities Purchase Agreement (Image Entertainment Inc)
Private Placement. (a) Such Person The Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant Securities by the Company to Section 2.2(b) hereof the Purchaser is intended to be exempt from registration under the Securities Act pursuant to Section section 4(2) thereof, and (ii) there is no existing public or other market for the New NotesSecurities.
(b) Such Person The Securities to be acquired by the Purchaser pursuant to this Agreement are being acquired for its own account and without a view to making a distribution thereof in violation of the Securities Act, without prejudice, however, to its right to sell or otherwise dispose of all or any part of such Securities in compliance with the provisions of the Securities Act and applicable state securities or "BLUE SKY" laws.
(ic) The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Securities and the Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Securities.
(d) The Purchaser is an "qualified institutional buyerACCREDITED INVESTOR," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(ce) Such Person is acquiring The Purchaser acknowledges that the additional New Notes Company and, for purposes of the opinion to be acquired delivered to the Purchaser pursuant to Section 2.2(b7.2(k) hereof for hereof, Baker, Donelson, Bearman & Cald▇▇▇▇ ▇▇▇l rely on the accuracy and truth of its own account (or for accounts over which it exercises investment authority)representations in this Section 4.3, for investment and not with a view the Purchaser hereby consents to the resale or distribution thereofsuch reliance.
(df) Such Person understands that The Purchaser has had the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements opportunity to ask questions of, and receive answers from, representatives of the Securities Act Company concerning the Company and applicable state securities laws the terms and that Holding's reliance on such exemption is predicated upon conditions of this transaction, as well as to obtain any information requested by the Lenders' representations contained hereinPurchaser. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under Any questions raised by the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has Purchaser concerning the transaction have been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect answered to the New Notes, (B) satisfaction of the Purchaser. The Purchaser's decision to enter into the transactions contemplated hereby is based in part on the answers to such questions as the Purchaser has had an opportunity to discuss with management raised concerning the transaction and on the Purchaser's own evaluation of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks and merits of the purchase and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentCompany's proposed business activities.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Internet Pictures Corp), Securities Purchase Agreement (Image Investor Portfolio a Sep Ser of Memphis Angels LLC)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the additional New Notes pursuant Securities Act; (ii) aware that the sale of Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereofand that the Company is relying in part upon the truth and accuracy of, and such Investor’s compliance with, the representations, warranties, agreements, acknowledgments and covenants of such Investor set forth herein in order to determine the availability of such exemptions and the eligibility of such Investor to acquire the Shares and (iiiii) there acquiring Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in a manner that would violate the Securities Act. If such Investor is no existing public acquiring the securities as a fiduciary or other market agent for one or more accounts, such Investor has sole investment discretion with respect to each such account and it has full power to make the New Notesrepresentations, acknowledgements, covenants and agreements set forth herein on behalf of such account.
(b) Such Person (i) is Investor understands and agrees that the Shares are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been and, except as such term is defined in Rule 144A will be contemplated by the Registration Rights Agreement, as amended by the Registration Rights Agreement Amendment, will not be registered under the Securities Act and that the Shares may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States.
(c) Such Person is acquiring the additional New Notes Investor (i) has such sufficient knowledge and experience in financial and business matters as to be acquired pursuant capable of evaluating the merits and risks of its prospective investment in the Shares, and (ii) has the ability to Section 2.2(b) hereof for bear the economic risks of its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofprospective investment.
(d) Such Person understands Investor acknowledges that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements (i) it has conducted its own investigation of the Securities Act Company and applicable state securities laws the terms of the Shares, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Shares, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and receive answers thereto, each as it deemed necessary in connection with the decision to purchase the Shares. Each Investor further acknowledges that Holding's reliance on it has had such exemption opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is predicated upon sufficient for purposes of the Lenders' purchase of the Shares. The foregoing, however, does not limit or modify the representations contained herein. In additionand warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under any of the Securities Act other express terms and such laws or is exempt from such registration or qualificationconditions of this Agreement.
(e) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(f) Except for the representations and warranties contained in Section 2 of this Agreement, each Investor acknowledges that neither the Company nor any Person (A) on behalf of the Company makes, and such Investor has been furnished with not relied upon, any other express or has had full access to all the information that it considers necessary implied representation or appropriate to make an informed investment decision warranty with respect to the New Notes, (B) has had an opportunity Company or any of its Subsidiaries or with respect to discuss with management of Holding the intended business and financial affairs of Holding and to obtain any other information (provided to the extent Holding possessed Investors in connection with the transactions contemplated by this Agreement.
(g) Such Investor understands that upon the original issuance of the Shares, and until such information time as the same is no longer required under applicable requirements of the Securities Act or could acquire it without unreasonable effort applicable state securities laws, any certificates or expenseother instruments representing the Shares, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear customary legends referencing such restrictions on transferability, and that the Company will make a notation on its records and give instructions to any registrar or transfer agent of the Shares in order to implement the restrictions on transfer set forth and described herein.
(h) necessary to verify Such Investor understands that no U.S. or foreign government or regulatory authority or agency has passed on or made any information furnished to it recommendation or to which it had access, (C) can bear endorsement of the economic risk Shares or the fairness or suitability of (x) an the investment in the New Notes indefinitely and (y) a total loss in respect Shares nor have such authorities passed upon or endorsed the merits of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks offering of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentShares.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Fly Leasing LTD), Securities Purchase Agreement (Summit Aviation Partners LLC)
Private Placement. (a) Such Person Each Purchaser (as to itself only) understands that and acknowledges that:
(i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to of 1933, as amended, by virtue of the provisions of either Section 4(2) thereof, of the Securities Act or Rule 506 of Regulation D ("Regulation D") promulgated under the Securities Act by the Securities and Exchange Commission (the "SEC");
(ii) the offering itself will be reported by the Company to the SEC to the extent required by Regulation D and to various state securities or blue sky commissioners to the extent required by applicable state law; and
(iii) there is no existing public or other market for the New NotesSecurities and there can be no assurance that any Purchaser will be able to sell or dispose of such Purchaser's Securities.
(b) Such Person Each Purchaser (as to itself only) represents and warrants to the Company that:
(i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act to be acquired by it pursuant to this Agreement are being acquired for its own account, not as a nominee or agent for any other Person and without a view to the distribution of such Securities or any interest therein in violation of the Securities Act; and
(ii) such Purchaser is an "accredited investor," as such term is defined in within the meaning of Rule 501(a) of under Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investmentD, and (D) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Securities, and such Purchaser is capable of bearing the economic risks of such investment and is able to protect bear the complete loss of its own interest investment in connection with the Securities.
(c) Each Purchaser further represents that the execution, delivery, and performance of this Agreement is within such investmentPurchaser's powers (corporate or otherwise) and has been duly authorized by all requisite action (corporate or otherwise).
(d) Each Purchaser acknowledges that the Securities have not been registered under the Securities Act and understands that the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement.
Appears in 1 contract
Private Placement. (a) Such Person The Purchaser understands and agrees with the Company that (i) the issuance offer and sale of the additional New Notes pursuant to Section 2.2(b) hereof Synergy Shares is intended to be exempt from registration under the Securities Act pursuant to by virtue of the provisions of Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for the New NotesSynergy Shares and there can be no assurance that the Purchaser will be able to sell or dispose of the Synergy Shares.
(b) Such Person The Purchaser represents and warrants to the Company that:
(i) the Synergy Shares to be acquired by it pursuant to this Agreement are being acquired for its own account and without a view to the distribution or resale of the Synergy Shares or any interest therein; provided, that the provisions of this Section shall not prejudice the Purchaser's right at all times to sell or otherwise dispose of all or any part of the Synergy Shares so acquired by the Purchaser pursuant to a registration under the Securities Act or an exemption from such registration available under the Securities Act;
(ii) the Purchaser is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) 501 of Regulation D promulgated by the Commission under the Securities Act; and
(iii) the Purchaser is not a broker or dealer (as defined in Sections 3(a)(4) and 3(a)(5) of the Exchange Act), member of a national securities exchange, or person associated with a broker or dealer as defined in Section 3(a)(18) of the Exchange Act, other than a business entity controlling or under common control with such broker, dealer, member or associated person.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.The Purchaser further represents that:
(di) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) Purchaser has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Synergy Shares and the Purchaser is capable of bearing the economic risks of such investment and is able to protect bear a complete loss of its own interest investment in connection with such investmentthe Synergy Shares; and
(ii) In evaluating the suitability of an investment in the Synergy Shares, the Purchaser has not relied upon any representations or other information (whether oral or written) made by or on behalf of the Company other than as set forth in the SEC Reports, this Agreement and the other Transaction Documents.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sinclair Broadcast Group Inc)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Preferred Stock and Warrants (collectively, including the Common Stock issuable upon conversion of the Preferred Stock and exercise of Warrants, the “Securities”) to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person (i) is Investor understands and agrees that the Securities are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as such term is defined in Rule 144A contemplated by the Investor Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States and Section 9 of this Agreement, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) Such Person is acquiring the additional New Notes to be acquired Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or, to the reasonable satisfaction of the Company, in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR AS MAY BE HELD BY A PERSON DEEMED AN “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER OF THIS SECURITY, AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE CERTIFICATE OF DESIGNATION OF SERIES [] CONVERTIBLE PREFERRED STOCK OF USEC INC. (THE “COMPANY”), AS AMENDED. THIS SECURITY IS SUBJECT TO THE RESTRICTIONS (INCLUDING THE VOTING AND TRANSFER RESTRICTIONS) SET FORTH IN ARTICLES FOURTH AND ELEVENTH OF USEC INC.’S CERTIFICATE OF INCORPORATION, AS AMENDED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE OBLIGATIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER, CONVERSION AND REDEMPTION) STATED IN, AND ARE TRANSFERABLE ONLY IN ACCORDANCE WITH, THE PROVISIONS OF SECTION 9 OF THE SECURITIES PURCHASE AGREEMENT BY AND AMONG THE COMPANY, TOSHIBA CORPORATION (“TOSHIBA”) AND ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ INVESTMENT COMPANY (“B&W”), DATED AS OF MAY 25, 2010. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE OBLIGATIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON THE DISPOSITION OF SECURITIES) STATED IN THE PROVISIONS OF SECTION 4.7 OF THE INVESTOR RIGHTS AGREEMENT BY AND AMONG THE COMPANY, TOSHIBA AND B&W, DATED AS OF ____, 2010.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.Investor:
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and
(ii) has the ability to bear the economic risks of its prospective investment and form an investment can afford the complete loss of such investment.
(e) Such Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Securities, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. Each Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement, the right of the Investors to rely thereon or any rights or remedies available to the Investors in this Agreement, the other Transaction Documents or otherwise.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 2 of this Agreement or in any other Transaction Document, each Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investors in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Private Placement. (a) Such Person understands that It is an “accredited investor” within the meaning of Regulation D under the U.S. Securities Act and is purchasing the Purchased Shares as principal, solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution or other disposition thereof. It further represents that:
(i) it understands that the issuance of the additional New Notes pursuant to Section 2.2(bPurchased Shares are being offered on a “private placement” basis (x) hereof is intended to be exempt from registration under the U.S. Securities Act, and, therefore, may not be transferred or sold except pursuant to the registration requirements of the U.S. Securities Act pursuant to Section 4(2) thereofand any applicable state securities Laws, or in compliance with the requirements of an exemption from such registration requirements, and (y) exempt from or not subject to prospectus requirements under Canadian securities Laws;
(ii) it understands that no Securities Regulator has reviewed or passed on the merits of the Purchased Shares;
(iii) it understands that there is no existing public government or other market for insurance covering the New Notes.Purchased Shares;
(biv) Such Person it understands that there are risks associated with the purchase of the Purchased Shares;
(iv) it is not purchasing the Purchased Shares as a "qualified institutional buyer," result of any “general solicitation or general advertising” (as such term is defined those terms are used in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the U.S. Securities Act.), including any advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or on the internet or broadcast over radio, television or the internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(cvi) Such Person it understands that there may be restrictions on its ability to resell the Purchased Shares under applicable securities Laws, it is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority)responsibility to find out what those restrictions are and to comply with them before selling the Purchased Shares and, for investment and except as otherwise set out in the Transaction Agreements, the Issuer has not agreed to take any action to facilitate such resale in accordance with a view to the resale or distribution thereof.applicable securities Laws; and
(dvii) Such it acknowledges that no Person understands has made any written or oral representations that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with any Person will resell or has had full access to all repurchase the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesPurchased Shares, (B) has had an opportunity to discuss with management of Holding any Person will refund the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information Proceeds, or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks future price or value of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentPurchased Shares.
Appears in 1 contract
Sources: Share Subscription Agreement (Skyline Champion Corp)
Private Placement. (a) Such Person It understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for any of the New NotesSecurities and there can be no assurance that it will be able to sell or dispose of such Securities purchased by it pursuant to this Agreement.
(b) Such Person (i) It is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.D.
(c) Such Person is acquiring the additional New Notes It has sufficient knowledge and experience in financial and business matters so as to be acquired pursuant to Section 2.2(b) hereof for capable of evaluating the merits and risks of its own account (or for accounts over which investment in the Securities and it exercises is capable of bearing the economic risks of such investment, including a complete loss of its investment authority), for investment and not with a view to in the resale or distribution thereofSecurities.
(d) Such Person understands It has had access to the management and records of the Issuer and has been furnished with all the information that the additional New Notes will be issued in a transaction exempt it has requested from the registration or qualification requirements Issuer for determining whether to purchase the Securities and has been given the opportunity to ask questions of, and receive answers from, management of the Issuer regarding its business and affairs and concerning the terms and conditions of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationother related matters.
(e) Such Person (A) has been furnished with or has had full access to all It understands that the information Securities and the shares of Common Stock issuable upon exercise of the Warrants are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Issuer in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, it represents that it considers necessary or appropriate to make an informed investment decision is familiar with respect to the New NotesSEC Rules 144 and 144A, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment as presently in the New Notes indefinitely and (y) a total loss in respect of such investmenteffect, and (D) has such knowledge understands the resale limitations imposed thereby and experience in business and financial matters so as to enable it to understand and evaluate by the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentSecurities Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (KMC Telecom Holdings Inc)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be The Purchased Shares are being acquired pursuant to Section 2.2(b) hereof by Purchaser for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to of the resale or distribution thereofthere of, and Purchaser has no present intention of making any distribution or disposition of any of such Purchased Shares. Purchaser understands that the Purchased Shares are being sold in a transaction which is exempt from the registration requirements of the Securities Act of 1933 (the "Act"), and that such Purchased Shares must be held and not resold unless they are subsequently registered under the Act or an exemption from such registration is available and the certificates issued to evidence such Purchased Shares shall contain a legend to the foregoing effect.
(b) Purchaser has had access to the documents referred to in the response dated May 5, 2000 to the Preliminary Due Diligence Request List, including, without limitation, the annual report on Form 10-KSB for the year ended December 31, 1999, the quarterly report on Form 10-QSB for the quarter ended March 31, 2000, filed by the Company with the Securities and Exchange Commission, and has been furnished additional documents by the Company's patent counsel.
(c) Purchaser has had a reasonable opportunity to ask questions of and receive answers from the Company concerning the Company and the Purchased Shares, and any such questions have been answered satisfactorily. In addition, Purchaser has had the opportunity to request additional information from the Company. Any such requested additional information has been provided.
(d) Such Person Except as set forth in this Agreement, no representations or warranties have been made to the Purchaser by the Company, and in entering into this transaction, the Purchaser is not relying upon any information other than that referred to herein. Neither the Company, nor any other person acting on its behalf has offered or sold the Purchased Shares to Purchaser by any form of general solicitation or general advertising.
(e) Purchaser understands that the additional New Notes will be issued Purchased Shares are being offered and sold in a transaction exempt reliance on specific exemptions from the registration or qualification requirements of the Securities Act federal and applicable state securities laws and that Holding's reliance on such exemption the Company is predicated relying upon the Lenders' representations contained herein. In additiontruth and accuracy of the representations, warranties, agreements, acknowledgments, and understandings of the Purchaser set forth herein in order to determine the applicability of such Person understands exemptions and the suitability of Purchaser to acquire the Purchased Shares.
(f) Purchaser acknowledges that such securities must be held indefinitely unless a subsequent disposition thereof is the certificate for the Purchased Shares will bear the following legend to the effect that the Purchased Shares have been acquired for investment, have not been registered or qualified under the Securities Act of 1933, and such laws may not be sold, transferred, pledged, or is exempt from hypothecated in the absence of such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or an exemption therefrom under said Act, and appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment stop transfer instructions will be noted in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentCompany's stock records.
Appears in 1 contract
Private Placement. (a) Such Person The Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Shares hereunder is intended to be exempt from the registration under requirements of the Securities Act of 1933, as amended (the "Securities Act") pursuant to Section 4(24(1) thereof, thereof and (ii) there is no existing public or other market for the New NotesShares and there can be no assurance that the Purchaser will be able to sell or dispose of the Shares.
(b) Such Person The Shares are being acquired by the Purchaser for its own account and without a view to the public distribution of the Shares or any interest therein.
(ic) The Purchaser is a an "qualified institutional buyer,accredited investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that The Purchaser is not a broker-dealer subject to Regulation T promulgated by the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements Board of Governors of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationFederal Reserve System.
(e) Such Person The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares, and the Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Shares.
(Af) The Purchaser has been furnished with or has had full access given the opportunity to all ask questions of, and receive answers from, the information Company and the Shareholder concerning the transactions contemplated by the Agreement, the Intellectual Property Agreement, the Transition Services Agreement, the Shares and other related matters. The Purchaser acknowledges that it considers necessary or appropriate to make an informed investment decision with respect the Company and the Shareholder have made available to the New Notes, (B) has had an opportunity Purchaser or its agents all documents and information requested by or on behalf of the Purchaser relating to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect Shares. In evaluating the suitability of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Shares, the Purchaser has not relied upon any other representations or other information (whether oral or written) made by or on behalf of the Company or the Shareholder other than as explicitly set forth in this Agreement.
(g) The Purchaser understands and agrees that it may not sell or dispose of any of the Shares other than pursuant to protect its own interest in connection with such investmenta registered offering, unless otherwise exempt from the registration requirements of the Securities Act.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) Investor understands that the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Common Shares is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(cii) Such Person Investor represents and warrants that it is acquiring the additional New Notes to be Common Shares acquired by such Investor pursuant to Section 2.2(b) hereof this Agreement for its investment for Investor’s own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofof such Common Shares or any interest therein other than in a transaction that is registered or exempt from registration under the Securities Act.
(diii) Such Person Investor represents and warrants that it is an “accredited investor” as such term is defined in Regulation D under the Securities Act.
(iv) Investor represents and warrants that it (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Common Shares, and is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Common Shares acquired by it hereunder.
(v) Investor has been given the opportunity to ask questions of, and receive answers from, the Company regarding the Company, the terms and conditions of the Common Shares and related matters, and has been furnished with the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Common Shares.
(vi) Investor understands that the additional New Notes will be issued Common Shares that it is acquiring are characterized as “restricted securities” under the Securities Act in as much as they are being acquired from the Company in a transaction exempt from the registration or qualification requirements of not involving a public offering and that under the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionregulations, such Person understands that such securities must Common Shares may be held indefinitely unless a subsequent disposition thereof is registered or qualified resold without registration under the Securities Act and such laws or is exempt from such registration or qualificationonly in certain limited circumstances. Investor understands that the certificates evidencing the Common Shares will bear a restrictive legend substantially as follows: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
(evii) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesInvestor has, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentits decision to acquire the Common Shares, relied solely upon the Exchange Act Reports and the representations and warranties of the Company contained in this Agreement.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Aehr Test Systems)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person Purchaser is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Purchased Securities for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to any distribution thereof within the resale or distribution thereofmeaning of the Securities Act.
(db) Such Person Purchaser understands that (i) the additional New Notes will be issued Purchased Securities have not been registered under the Securities Act, by reason of their issuance by the Company in a transaction exempt from the registration or qualification requirements of the Securities Act Act; and applicable state securities laws and that Holding's reliance on (ii) the Purchased Securities may not be sold unless such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from registration thereunder.
(c) Such Purchaser further understands that the exemption from registration afforded by Rule 144 (the provisions of which are known to such registration Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts.
(d) Such Purchaser did not employ any broker or qualificationfinder in connection with the transactions contemplated in this Agreement.
(e) Such Person Purchaser is an "Accredited Investor" (Aas defined in Rule 501(a) has been furnished with under the Securities Act).
(f) At least one of the following statements is an accurate representation as to each source of funds (a "SOURCE") to be used by it to pay the purchase price of the Purchased Securities to be purchased by it hereunder:
A. the Source is an "insurance company general account" within the meaning of Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued July 12, 1995) and there is no employee benefit plan, treating as a single plan, all plans maintained by the same employer or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision employee organization, with respect to which the New Notesamount of the general account reserves and liabilities for all contracts held by or on behalf of such plan, exceeds 10% of the total reserves and liabilities of such general account (Bexclusive of separate account liabilities) plus surplus, as set forth in the NAIC Annual Statement filed with such Purchaser's state of domicile; or
B. the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as it has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (disclosed to the extent Holding possessed Company in writing pursuant to this paragraph (b), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such information pooled separate account or could acquire it without unreasonable effort collective investment fund; or
C. the Source constitutes assets of an "investment fund" (within the meaning of Part V of the QPAM Exemption) managed by a "qualified professional asset manager" or expense"QPAM" (within the meaning of PART V of the QPAM Exemption), no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) necessary to verify any information furnished to it of the QPAM Exemption) of such employer or to which it had accessby the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (CG) can bear of the economic risk QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of (x"control" in Section V(e) an investment of the QPAM Exemption) owns a 5% or more interest in the New Notes indefinitely Company and (yi) a total loss in respect the identity of such investment, QPAM and (Dii) has the names of all employee benefit plans whose assets are included in such knowledge and experience investment fund have been disclosed to the Company in business and financial matters so as writing pursuant to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.this paragraph (C);or
Appears in 1 contract
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Shares for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by Section 7.7, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States, and that it will notify any subsequent purchaser of Shares from it of the resale restrictions referred to above, as such term is defined in Rule 144A applicable.
(c) The Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Shares will bear a legend or other restriction substantially to the following effect (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under it being agreed that if the Securities Act.
are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authorityTHE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF SUCH SECURITIES AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF SUCH SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. SUCH SECURITIES MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF APRIL 1, 2010, BETWEEN MERGE HEALTHCARE INCORPORATED AND THE INVESTORS IDENTIFIED THEREIN.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.The Investor:
(ei) Such Person (A) has been furnished with or has had full access is able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated hereby;
(y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Shares; and
(iii) has the ability to bear the economic risks of its prospective investment and form an investment decision can afford the complete loss of such investment.
(e) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements. Except for the representations and warranties contained in Article III of this Agreement, each Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Investor has not relied upon, any other express or implied representation or warranty with respect to (i) the Company or any of its investment in Subsidiaries or (ii) any other information provided to the New Notes to protect its own interest Investor in connection with the transactions contemplated by this Agreement. Such Investor understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Investor in connection with the purchase of the Shares constitutes legal, tax or investment advice. Such Investor has consulted such investmentlegal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.
Appears in 1 contract
Sources: Securities Purchase Agreement (Merge Healthcare Inc)
Private Placement. (a) Such Person understands that The Investor is (i) an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the issuance and sale of the additional New Notes Common Stock pursuant to Section 2.2(bthis Agreement and the Warrant issued pursuant to the Warrant Agreement (collectively, the "Securities") hereof is intended to be exempt are being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): "THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT"), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF JANUARY 23, 2018, AMONG R1 RCM INC. AND IHC HEALTH SERVICES, INC."
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption The Investor: (i) is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated by this Agreement; (y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company's public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the SEC Reports), the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investor in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Private Placement. Sellers understand and acknowledge that the shares of Buyer Common Stock and the Contingent Shares (acollectively, the "Shares") Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to will not be exempt from registration registered under the Securities Act of 1933, as amended (the "1933 Act") or under any applicable state laws on the ground that the offering and sale of the Shares is exempt from registration pursuant to Section 4(2) thereof, of the 1933 Act and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) 505 of Regulation D thereunder and comparable exemptions from registration or qualification under any applicable state laws. Accordingly, the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes Shares will be issued to Sellers in a transaction exempt reliance upon an exemption from the registration or qualification requirements of the Securities 1933 Act and applicable state laws, and the Shares may not be sold unless they are registered under such securities laws or are sold pursuant to an applicable exemption from registration, including Rule 144 of the Rules and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under Regulations of the Securities Act and such laws or is exempt from such registration or qualificationExchange Commission.
(e1) Such Person As a condition of its delivery of the certificates for the Shares to the holder thereof (Athe "Holders"), the Buyer may require the Sellers (including the transferee of the Shares in whose name the Shares are to be registered) has been furnished with or has had full access to all deliver to Buyer, in writing, representations regarding the information that it considers necessary or appropriate Holders' sophistication, investment intent, acquisition for their own account and such other matters as are reasonable and customary for purchasers of unregistered securities in an unregistered private offering, and Buyer may place conspicuously upon each certificate representing the Shares a legend substantially in the following form the terms of which are agreed to make an informed investment decision by the Holders (including such transferees): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL FOR THE HOLDERS SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(2) Neither of the Sellers will take any action which would adversely affect the availability with respect to the New Notes, (BShares of the exemptions from registration under the 1933 Act under Section 4(2) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information Regulation D or could acquire it without unreasonable effort or expense) necessary to verify under any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentapplicable state laws.
Appears in 1 contract
Private Placement. (a) Such Person understands that Notwithstanding the foregoing Section 5.1,
(i) in the issuance event that the Company is advised by the SEC, the Financial Industry Regulatory Authority (“FINRA”), any stock exchange on which the Company’s shares are to be traded (“Exchange”) or any other regulatory body (or any of their staffs), that the offering or sale of such securities to the Specified Investors as described above in Subsection 5.1 would violate any federal or state securities laws or the rules or regulations of the additional New Notes SEC, FINRA, Exchange, or any other regulatory body, then the Company shall offer to each Specified Investor the right to purchase in a separate private placement (which shall be conducted, in whole or in part, concurrently with the IPO and the closing of which shall be contingent on the closing of the IPO) up to that number of shares of Common Stock such Specified Investor would have been entitled to purchase pursuant to Section 2.2(bSubsection 5.1, at the price per share of the securities offered in the IPO (before excluding underwriters’ discounts and commissions); and
(ii) hereof is intended in the event that the managing underwriter(s) advise(s) the Specified Investors that marketing factors require a limitation on the number of shares to be exempt from registration under underwritten and request(s) that the Securities Act Specified Investors’ Public Offering Participation Right be subject to carve-backs, restrictions or other limitations (the “Cutback”), which Cutback shall be applied equally to each of the Specified Investors, then the Company shall offer to each Specified Investor the right to purchase, in a separate private placement (which may be conducted, in whole or in part, concurrently with the IPO), up to the difference between the number of shares of Common Stock such Specified Investor would have been able to purchase pursuant to Section 4(2Subsection 5.1 but for the Cutback and the number of shares such Specified Investor was actually permitted to purchase in the IPO pursuant to Subsection 5.1, at the price per share of the securities offered in the IPO (before excluding underwriters’ discounts and commissions) thereof, (Subsections 5.2(a)(i) and (ii) there is no existing public or other market for collectively, the New Notes“Private Sale Participation Right”).
(b) Such Person Notwithstanding the foregoing, each Specified Investor agrees that (i) is in no event shall the Private Sale Participation Right be exercised in such a "qualified institutional buyer," as such term is defined manner that, in Rule 144A under the Securities Act or reasonable determination of the managing underwriter(s), would materially and adversely affect the IPO and (ii) the number of shares each Specified Investor is an "accredited investor," entitled to purchase may be reduced or modified to the extent reasonably requested by the Company’s underwriter(s) as to not cause such term is defined in Rule 501(a) material and adverse effect on the IPO, which reduction or modification shall be applied equally to each of Regulation D under the Securities ActSpecified Investors.
(c) Such Person is acquiring If a Specified Investor exercises its Private Sale Participation Right, the additional New Notes Company and such Specified Investor shall execute and deliver such documents that are (i) customary for a transaction structured as a concurrent private placement with a public offering and (ii) reasonably satisfactory to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authoritythe Company, such Specified Investor and the managing underwriter(s), for investment and not with a view to the resale or distribution thereofif applicable.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Stoke Therapeutics, Inc.)
Private Placement. (ai) Such Person understands The Company shall use commercially reasonable efforts to take such actions and cause the holders of Company Capital Stock, Company Warrants and Company Options who will receive Parent Common Stock upon the Closing to provide all documentation, including investor questionnaires, reasonably requested by Parent to allow Parent to issue the Parent Common Stock to such holders in a manner that satisfies the private placement requirements of Section 4(a)(2) and/or Rule 506 of Regulation D under the Securities Act, including certifications to Parent that (i) the issuance such holder is and will be, as of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereofFirst Effective Time, and an “accredited investor” (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A 501 of Regulation D under the Securities Act Act) and as to the basis on which such holder is an accredited investor; or (ii) such holder is not and will not be, as of the First Effective Time, an "“accredited investor," ”, in which case such holder either alone or with such holder’s purchaser representative has such knowledge and experience in financial and business matters that such holder is capable of evaluating the merits and risks of the Parent Common Stock; and (iii) that the Parent Common Stock is being acquired for such holder’s account for investment only and not with a view towards, or with any intention of, a distribution or resale thereof for at least a period of six (6) months following the Closing. As it relates to any holder that is not and will not be an “accredited investor” as of the First Effective Time, Parent covenants and agrees to furnish all information to such term holders as is defined in required for compliance with Rule 501(a502(b)(2) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired . The Parent Common Stock issued pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes this Agreement will be issued deemed restricted shares as defined in a transaction exempt from the registration or qualification requirements Rule 144(a)(3) of the Securities Act and applicable state securities laws will be subject to certain resale restrictions, including a six (6) month holding period, at which time the holders thereof may request the Rule 144 restrictions be removed, and Parent agrees to take such action reasonably requested by the holders thereof to authorize the removal of any restricted legends and/or other restrictions on the Parent Common Stock, including, if required, an opinion of the Parent’s general counsel; provided, however, that Holding's reliance on in the event Parent’s general counsel does not respond and fulfill a request for an opinion from any such exemption is predicated upon the Lenders' representations contained herein. In additionholder within five (5) Business Days, such Person understands that holder may select an alternative counsel reasonably acceptable to Parent to provide such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under opinion, and, in each case, the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect costs of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentopinion shall be borne by Parent.
Appears in 1 contract
Sources: Merger Agreement (Crexendo, Inc.)
Private Placement. (a) Such Person understands that Investor is (i) an "accredited investor" within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Purchased Shares to Section 2.2(b) hereof is intended to be exempt it are being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Purchased Shares for the New Notesits own account.
(b) Such Person Investor understands and agrees that the Purchased Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Purchased Shares have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Purchased Shares may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of the Company Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Purchased Shares from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Purchased Shares will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Purchased Shares are not certificated, other appropriate restrictions shall be implemented to give effect to the following): "THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT"), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY COMPANY SUBSIDIARY, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE." THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN AGREEMENTS AND WAIVERS OF THE HOLDER THEREOF AS SET FORTH IN THAT CERTAIN SECURITIES PURCHASE AGREEMENT DATED AS OF JUNE 20, 2019 (INCLUDING, WITHOUT LIMITATION, SECTION 9 THEREOF), AND ANY SUCCESSOR, TRANSFEREE, ASSIGN, HEIR, EXECUTOR AND ADMINISTRATOR SHALL BE SUBJECT TO ALL SUCH AGREEMENTS AND WAIVERS.
(d) Such Person understands that Investor (i) has such knowledge and experience in financial and business matters as to be capable of evaluating the additional New Notes will be issued merits and risks of its prospective investment in a transaction exempt from the registration or qualification requirements Purchased Shares and (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment. Without limiting the foregoing, such Investor has reviewed and been advised as to the implications on the Purchased Shares of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationprovisions of Section 9 hereof.
(e) Such Person Investor acknowledges that (Ai) it has conducted its own investigation of the Company and the terms of the Purchased Shares, (ii) it is aware of the Company’s business affairs and financial condition and (iii) it has had access to the Company's public filings with the SEC and to such financial and other information as it deems necessary to make an informed and knowledgeable decision to purchase the Purchased Shares, each as it deemed sufficient in connection with the decision to purchase the Purchased Shares. The Investor has such business and financial experience as is required to give it the capacity to protect its own interests in connection with the purchase of the Purchased Shares. The Investor acknowledges that it has had the opportunity to review the Company’s public filings with the SEC and has been furnished with or afforded (i) the opportunity to ask such questions as it has had full deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Purchased Shares and the merits and risks of investing in the Purchased Shares; (ii) access to all information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that it considers the Company possesses or can acquire without unreasonable effort or expense that is necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) investment. Such Investor further acknowledges that it has had an such opportunity to discuss consult with management its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of Holding the intended business purchase of the Purchased Shares. The foregoing, however, does not limit or modify the representations and financial affairs warranties of Holding the Company in Section 4 of this Agreement or the right of such Investor to rely on such representations and to obtain information warranties.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Such Investor is a U.S. Person with principal executive offices located at the address set forth in the notice provisions hereof.
(h) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the extent Holding possessed Filed SEC Reports), such information or could acquire it without unreasonable effort or expense) necessary to verify Investor acknowledges that neither the Company nor any information furnished to it or to which it had access, (C) can bear Person on behalf of the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investmentCompany makes, and (D) such Investor has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision not relied upon, any other express or implied representation or warranty with respect to its investment in the New Notes Company or any Company Subsidiaries or with respect to protect its own interest any other information provided to such Investor in connection with such investmentthe Transactions.
Appears in 1 contract
Sources: Securities Purchase Agreement (Rimini Street, Inc.)
Private Placement. (a) Such Person Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities in the Transactions by the Company is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, thereof and (ii) there is no existing public or other market for the New NotesDebentures or the Warrants.
(b) Such Person Purchaser (i) is a "qualified institutional buyer," an “accredited investor” as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act, (ii) was not organized for the specific purpose of acquiring the Securities, (iii) has sufficient knowledge and experience in financial and business matters (either alone or together with its advisors) so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the Securities and to protect its own interest in connection with such investment and (iv) can bear the economic risk of (A) an investment in the Securities indefinitely and (B) a total loss in respect of such investment.
(c) Such Person Purchaser is acquiring the additional New Notes Securities to be acquired pursuant to Section 2.2(bhereunder (and will acquire the Warrant Shares) hereof for its own account (or for accounts over which it exercises investment authority)account, for investment and not with a view to the public resale or distribution thereofthereof in violation of any securities law.
(d) Such Person Purchaser understands that the additional New Notes Securities will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws laws, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such applicable state securities laws or is exempt from such registration or qualification.
(e) Such Person Purchaser (Ai) has been furnished with or has had full access to or has been given the opportunity to review all of the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesSecurities and that it has requested from the Company, (Bii) has had an opportunity to discuss with management of Holding the intended Company the business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had accessaccess and (iii) has had the opportunity to review all publicly available Commission Filings, (C) can bear including the economic risk of (x) an investment section regarding Risk Factors set forth in the New Notes indefinitely Company’s Annual Report on Form 10-K as filed with the Commission on March 31, 2003.
(f) Such Purchaser understands and (y) agrees that so long as applicable, each certificate representing any Debenture shall be stamped or otherwise imprinted with a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment legend in the New Notes following form (in addition to protect its own interest any legend required under applicable state securities laws): THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR THE SECURITIES LAWS OF ANY S▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OTHER THAN PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS Such Purchaser further understands and agrees that so long as applicable, each certificate representing any Warrant or Warrant Shares shall be stamped or otherwise imprinted with a legend as set forth in connection with such investmentthe Warrant Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Superior Consultant Holdings Corp)
Private Placement. (a) Such Person understands GlobalOptions acknowledges that (i) the issuance of the additional New Notes Merger Shares pursuant to Section 2.2(b) hereof 1.4 is intended to be exempt from registration under the Securities Act, by virtue of Regulation D of the Securities Act pursuant to and/or Section 4(2) thereofof the Securities Act, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as that its stockholders, upon receipt of such term is defined in Rule 144A Merger shares, may not sell such shares, unless such shares subsequently are registered under the Securities Act or (ii) an exemption from such registration is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person available. GlobalOptions understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities Merger Shares must be held indefinitely unless a subsequent disposition thereof is they are subsequently registered or qualified under the Securities Act and such laws or is exempt an exemption from such registration or qualificationis available and that no tacking of holding period is available under Rule 144(d) of the Securities Act. GlobalOptions understands and agrees that, in order to ensure compliance with the restrictions referred to herein, Pubco may issue appropriate "stop transfer" instructions to its transfer agent. Pubco understands that the following legend (and such other legends as Pubco deems appropriate) shall be placed on such shares: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
(e" Pubco shall use commercially reasonable efforts to meet the requirements of Rule 144(c) Such Person (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make Securities Act and, if an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect opinion is required by Pubco for transfer of such investmentshares, and (D) has Pubco shall retain counsel to determine whether such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentopinion may be rendered.
Appears in 1 contract
Sources: Merger Agreement (Creative Solutions With Art, Inc.)
Private Placement. (a) Such Person understands that (i) The Investor is (A) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (B) aware that the sale of the additional New Notes Series A Shares and the Company Common Stock issuable upon conversion of the Series A Stock being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof to it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2and (C) thereof, and acquiring the Securities for its own account.
(ii) there is no existing The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Stockholder Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or other market for otherwise transferred only (A) in a transaction not involving a public offering, (B) pursuant to an exemption from registration under the New Notes.
Securities Act provided by Rule 144 thereunder (bif available), (C) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A pursuant to an effective registration statement under the Securities Act or (iiD) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (A) through (D) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(ciii) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands registration statement that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified has been declared effective under the Securities Act and such laws or is exempt from such registration in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or qualification.
other restriction substantially to the following effect (e) Such Person it being agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesTHIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) has had an opportunity THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE STOCKHOLDER AGREEMENT, DATED AS OF [●], 2010, BY AND AMONG ▇▇▇▇▇▇▇▇-VAN HEUSEN CORPORATION, LNK PARTNERS, L.P. AND LNK PARTNERS (PARALLEL), L.P.”
(iv) The Investor (A) is able to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated by this Agreement; (y) a total loss in respect of such investment, and (DB) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities and form an investment (C) has the ability to bear the economic risks of its prospective investment, and can afford the complete loss of such investment.
(v) The Investor acknowledges that (A) it has conducted its own investigation of the Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ B.V., the Acquisition Transactions and the terms of the Securities, (B) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities and (C) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries, and of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ B.V. and its Subsidiaries, and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 3.01 of this Agreement or the right of the Investor to rely on such representations and warranties.
(vi) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements in connection with the issuance and sale of the Series A Shares.
(vii) Except for the representations and warranties contained in Section 3.01 (including any references in such Section to the forms, documents and reports filed by the Company with the SEC since January 1, 2008), the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investor in connection with such investmentthe transactions contemplated by this Agreement. Furthermore, the Investor acknowledges that neither the Company nor any other Person makes or has made any representation or warranty to the Investor, or any of its Affiliates or representatives with respect to any financial projection, forecast, estimate, budget or prospect information relating to the Company or any of its Subsidiaries or their respective businesses.
Appears in 1 contract
Sources: Securities Purchase Agreement (Phillips Van Heusen Corp /De/)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Securities (for purposes of this Section, the term Securities includes the Common Stock issuable upon conversion of the Warrants) to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person (i) is The Investor understands and agrees that the Securities are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as such term is defined in Rule 144A contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (iii) is pursuant to an "accredited investor," as such term is defined in Rule 501(a) of Regulation D exemption from registration under the Securities Act, including the exemption provided by Rule 144 thereunder (if available), (ii) pursuant to an effective registration statement under the Securities Act, or (iii) to the Company or one of its Subsidiaries, in each of cases (i) through (iii) in accordance with any applicable securities laws of any State of the United States, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.The Investor:
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access is able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated by this Agreement;
(y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes Securities; and
(iii) has the ability to protect bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(d) The Investor acknowledges that (i) it has conducted its own interest investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Securities, and (iii) has been offered the opportunity to ask questions of the Company and received answers thereto, as it deemed necessary in connection with such investmentthe decision to purchase the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company under this Agreement or the right of the Investor to rely thereon.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Eastman Kodak Co)
Private Placement. (a) Such Person understands Purchaser acknowledges that (i) the issuance Securities have not been registered under the Securities Act, or the securities laws of the additional New Notes any state or other jurisdiction and can only be resold pursuant to Section 2.2(ban effective Registration Statement (a "Registration Statement") hereof is intended to be exempt from registration under the Securities Act or pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notesan exemption thereunder.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person Purchaser represents and warrants that it is acquiring the additional New Notes Securities to be acquired purchased by it pursuant to Section 2.2(b) hereof this Agreement for its investment for such Purchaser's own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued of such Securities or any interest therein other than in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified exempt from registration under the Securities Act and such laws or is exempt from such registration or qualificationany applicable state laws.
(ec) Such Person Purchaser represents and warrants to the Company that (Ai) it is an "accredited investor" as such term is defined in Regulation D under the Securities Act; (ii) it has been furnished with or has had full access to all previously invested in securities of companies in the information biotechnology sector and acknowledges that it considers necessary (either alone or appropriate to make an informed investment decision together with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Dits advisors) has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in the Securities; (iii) it has the ability to bear the economic risks of the investment therein; (iv) it is able, without materially impairing its financial matters so as condition, to enable hold the Securities for an indefinite period of time and to suffer complete loss of its investment; (v) it to understand and evaluate has fully considered the risks of this investment and form stipulates that (A) this investment is suitable only for an investor who is able to bear the economic consequences of a total loss thereof, (2) the Securities represent an investment decision that involves a substantial degree of risk of loss and (3) there are substantial restrictions on the transferability of the Securities and that, accordingly, it may not be possible for such Purchaser to liquidate its investment; and (vi) there has been no representation by the Company as to the possible future value of the Securities as to any anticipated liquidity events other than those certain registration rights contained in the Registration Rights Agreement.
(d) Such Purchaser has been given the opportunity to ask questions of, and receive answers from, the Company regarding the Company, the terms and conditions of the Securities and related matters, and has been furnished with or has otherwise had access to the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Securities.
(e) Such Purchaser understands that the Securities that it is purchasing are characterized as "restricted securities" under the Securities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under the Securities Act and applicable regulations, such Securities may be resold without registration under the Securities Act only in certain limited circumstances. It is understood that the certificates delivered in connection with the Closing evidencing the Securities will bear a restrictive legend.
(f) Such Purchaser represents that it understands the tax consequences of this investment and it has consulted its own legal, accounting, tax, investment and other advisors with respect to its the tax treatment of the investment in the New Notes to protect its own interest contained herein by such Purchaser.
(g) Such Purchaser has, in connection with such investmentits decision to purchase the Securities, relied solely upon the 34 Act Reports (as of the date of filing) and the representations and warranties of the Company contained herein.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dov Pharmaceutical Inc)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act by virtue of paragraph (a)(8) thereof; (ii) aware that the sale of the additional New Notes Series A Preferred Stock, the Common Stock and the Common Stock issuable upon conversion of the Series A Preferred Stock being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and applicable state securities Laws and (iiiii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under acquiring the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (account, not as a nominee or for accounts over which it exercises investment authority)agent, for investment and not with a view to the resale or distribution of any part thereof, and that such Investor has no present intention of selling, granting any participation in or otherwise distributing the same.
(db) Such Person The Investor understands and agrees that the additional New Notes will be issued Securities are being offered in a transaction exempt from not involving any public offering within the registration or qualification requirements meaning of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionAct, such Person understands that such securities must Securities have not been and, except as contemplated by the registration rights provided for in the Stockholders Agreement, will not be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and that such laws Securities may be offered, resold, pledged or is exempt otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to an exemption from such registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or qualification(iv) to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(ec) Such Person The Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (it being agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesTHIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (to the extent Holding possessed such information or could acquire it without unreasonable effort or expenseA) necessary to verify any information furnished to it or to which it had access, ABOVE.”
(Cd) can bear the economic risk of The Investor: (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes Securities and (ii) has the ability to protect bear the economic risks of its prospective investment and can afford the complete loss of such investment. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(e) The Investor acknowledges that (i) it has conducted its own interest investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities, (iii) it has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities and (iv) any projections, estimates or forecasts of future results or events provided by or on behalf of the Company are subject to uncertainty and to the assumptions used in their preparation. The Investor further acknowledges that it has had such investmentopportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) The Seller is aware that (A) the issuance of Buyer Common Stock to be issued to the additional New Notes Seller in the Sale will not be issued pursuant to Section 2.2(b) hereof is intended to be exempt from a registration statement under the Securities Act pursuant to Act, but will instead be issued in reliance on the exemption from registration set forth in Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under of the Securities Act or (ii) is an "accredited investor," as such term is defined and in Rule 501(a) of Regulation D under the Securities Act, and (B) neither the Sale nor the issuance of such Buyer Common Stock has been approved or reviewed by the SEC or by any other Governmental Authority.
(cii) Such Person The Seller is acquiring aware that (i) the additional New Notes Buyer Common Stock to be acquired issued in the Sale cannot be offered, sold or otherwise transferred, assigned, pledged or hypothecated unless such Buyer Common Stock is registered under the Securities Act or unless an exemption from registration is available, (ii) the Buyer is under no obligation to file a registration statement with respect to the Buyer Common Stock to be issued to the Seller in the Sale, and (iii) the provisions of Rule 144 will permit resale of the Buyer Common Stock to be issued to the Seller in the Sale only under limited circumstances, and such Buyer Common Stock must be held by the Seller for at least one year before it can be sold pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofRule 144.
(diii) Such Person The Seller understands that the additional New Notes there will be issued placed on the certificate or certificates representing such Buyer Common Stock legends identical or similar in a transaction exempt from effect to the registration following legend (together with any other legend or qualification requirements of the Securities Act and legends required by applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained hereinor otherwise): “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. In additionTHE SALE, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationTRANSFER OR VOTING OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF A STOCK PURCHASE AGREEMENT BY AND AMONG CALIPER TECHNOLOGIES CORP.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.THE BERWIND COMPANY LLC AND BERWIND CORPORATION. COPIES OF THE AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF CALIPER TECHNOLOGIES CORP. AT THE PRINCIPAL EXECUTIVE OFFICES OF CALIPER TECHNOLOGIES CORP..”
Appears in 1 contract
Sources: Stock Purchase Agreement (Caliper Technologies Corp)
Private Placement. (a) The Securities to be acquired by such Purchaser hereunder will be acquired for such Purchaser’s own account and not with a view to the resale or distribution of any part thereof. Such Person understands Purchaser is aware that (i) the issuance offer and sale of the additional New Notes pursuant Securities to Section 2.2(b) hereof is intended to be exempt from registration it have not been, and, except as contemplated by the Registration Rights Agreement, will not be, registered under the Securities Act pursuant to Section 4(2) thereof, or any state securities Laws and are being offered and sold in reliance upon exemptions from the registration requirements of the Securities Act and (ii) there is no existing public the Securities purchased hereunder may not be transferred or resold except as permitted under the Securities Act and applicable state securities Laws pursuant to registration or exemption from registration requirements thereunder; provided, however, that by making such representations herein, such Purchaser does not agree to hold any of the Securities for any minimum or other market specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. Further, such Purchaser is aware and agrees that the offer and sale of the Shares to it do not require the publication of a securities prospectus under the Prospectus Regulation and that such securities prospectus has not been, and will not be, filed for approval with the New Notescompetent authority nor published in any Member State and are being offered and sold in reliance upon exemptions from the securities prospectus requirements under the Prospectus Regulation.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) Purchaser is an "“accredited investor," as such term is defined in ” within the meaning of Rule 501(a) 501 of Regulation D promulgated under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired Purchaser understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the certificates evidencing the Securities will bear a legend or other restriction substantially to the following effect (it being agreed that if the Shares or for accounts over which it exercises investment authorityWarrant Shares are not certificated, other appropriate restrictions shall be implemented or notated to give effect to the following): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR THE SECURITIES LAWS OF ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
Purchaser (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) Such Purchaser (i) has conducted its own investigation of the Company and the Securities; (ii) has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary in connection with its decision to purchase the Securities; and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations, and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deems necessary in connection with its decision to purchase the Shares. Each Purchaser further acknowledges that it has had the opportunity to consult with its own counsel, financial, tax, and other professional advisers as it believes is sufficient for purposes of its purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 hereof or the right of each Purchaser to rely thereon.
(f) Such Purchaser understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements, and agreements.
(g) Except for the representations and warranties contained in Section 2 hereof, each Purchaser acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Purchaser has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in the New Notes Subsidiaries or with respect to protect its own interest any other information provided to such Purchaser in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Scientific Industries Inc)
Private Placement. (a) Such Person understands that (i) The Subscriber understands that the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Shares are intended to be exempt from registration under the Securities Act, applicable U.S. state securities laws and the laws of any non-U.S. jurisdictions by virtue of the private placement exemption from registration provided in Section 4(a)(2) of the Securities Act pursuant to Section 4(2) thereofand Rule 506 of Regulation D and Regulation S promulgated thereunder, exemptions under applicable U.S. state securities laws and exemptions under the laws of any non-U.S. jurisdictions, and the Subscriber agrees that neither its Capital Commitment nor any Shares acquired by the Subscriber may be Transferred (as defined below) in any manner that would require the Fund to register the Shares under the Securities Act, under any U.S. state securities laws or under the laws of any non-U.S. jurisdictions. The Subscriber was offered the Shares through private negotiations, not through any general solicitation or general advertising.
(ii) there is no existing public or other market for The Subscriber understands that the New Notes.
Fund requires each investor in the Fund to be either (bA) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "“accredited investor," ” as such term is defined in Rule 501(a) of Regulation D of the Securities Act (“Accredited Investor”), or (B) not “U.S. persons” as within the meaning of Regulation S under the Securities Act, and the Subscriber represents and warrants that it is either (A) an Accredited Investor or (B) not a “U.S. person” in accordance with Regulation S, as indicated in the Investor Questionnaire, and is not investing for the direct or indirect benefit of a U.S. Person as within the meaning of Regulation S under the Securities Act.
(iii) If the Subscriber is not an Accredited Investor, then Subscriber further represents and warrants that: (a) no offers to sell or to purchase the Shares were made to the Subscriber or by the Subscriber while the Subscriber was in the United States; (b) the Subscriber was not in the United States at the time the offer was accepted; and (c) Such at the time the Subscriber’s subscription for Shares was originated, the Subscriber was outside the United States, except for offers and sales to discretionary or similar accounts (other than an estate or trust) held for the benefit or account of a non-U.S. Person (as within the meaning of Regulation S under the Securities Act) by a dealer or other professional fiduciary organized, incorporated or resident in the United States.
(iv) The Subscriber understands that the offering and sale of the Shares in non-U.S. jurisdictions may be subject to additional restrictions and limitations and represents and warrants that it is acquiring its Shares in compliance with all applicable laws, rules, regulations and other legal requirements applicable to the additional New Notes Subscriber, including the legal requirements of jurisdictions in which the Subscriber is resident and in which such acquisition is being consummated. In furtherance, and not in limitation, of the foregoing, if the Subscriber is a resident of any of the jurisdictions set forth in the Memorandum, the Subscriber represents, warrants and covenants as specified in the Memorandum hereto for such jurisdiction.
(v) The Shares to be acquired pursuant to Section 2.2(b) hereof hereunder are being acquired by the Subscriber for its the Subscriber’s own account (or for accounts over which it exercises investment authority), for investment purposes only and not with a view to the resale or distribution thereof.
distribution. The Subscriber shall not, directly or indirectly, Transfer all or any portion of such Shares (dor solicit any offers to buy, purchase or otherwise acquire or take a pledge or charge of all or any part of such Shares) Such Person understands that the additional New Notes will be issued except in a transaction exempt from accordance with (i) the registration or qualification requirements provisions of the Securities Act and or an exemption from such registration provisions, (ii) any applicable U.S. federal or state or non-U.S. securities laws and that Holding's reliance on such exemption is predicated upon (iii) the Lenders' representations contained hereinterms of this Subscription Agreement and the Declaration of Trust. In addition, such Person The Subscriber understands that such securities must it may be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access required to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Shares for a substantial period of time because, among other reasons, the offering and sale of the Shares have not been registered under the Securities Act and, therefore, the Shares cannot be sold other than through a privately negotiated transaction unless they are subsequently registered under the Securities Act or an exemption from such registration is available. “Transfer” (or any derivative thereof) shall mean to protect its own interest sell, offer for sale, agree to sell, exchange, transfer, assign, pledge, hypothecate, grant any option to purchase or otherwise dispose of or agree to dispose of, in connection with such investmentany case whether directly or indirectly.
Appears in 1 contract
Private Placement. Such Purchaser understands and acknowledges that:
(a) Such Person understands The Shares to be issued to such Purchaser pursuant to this Agreement have not been, and will not be, registered under the U.S. Securities Act of 1933, as amended (the "SECURITIES ACT"), and that (i) the issuance Shares will be issued to such Purchaser in a transaction that is exempt from the registration requirements of the additional New Notes Securities Act. Such Purchaser understands and acknowledges that such Shares cannot be offered or resold except pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, or an available exemption from registration and (ii) there such Purchaser agrees that such Purchaser shall not resell such Shares except in compliance with applicable securities laws. Such Purchaser acknowledges and agrees that the Shares are "restricted securities" as defined in the Securities Act and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is no existing public or other market for the New Notesavailable.
(b) Such Person Purchaser is purchasing the Shares for such Purchaser's own account for investment and not with a view to, or for resale in connection with, the distribution hereof, and Purchaser has no present intention of distributing any thereof, except in accordance with the terms of this Agreement. Purchaser understands that the Shares have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which may depend upon, among other things, the bona fide nature of Purchaser's investment intent as expressed herein.
(ic) Such Purchaser has such knowledge and experience in financial and business matters that he or it is a capable of evaluating the merits and risks of his or its investment in the Shares pursuant to this Agreement and protecting Purchaser's own interests in connection with this transaction.
(d) Such Purchaser has the financial ability to bear the economic risk of Purchaser's investment in the Shares pursuant to this Agreement, Purchaser is aware that Purchaser may be required to bear the economic risk of his or its investment in the Shares for an indefinite period of time, Purchaser has no need for liquidity with respect to Purchaser's investment therein at this time, and Purchaser has adequate means of providing for his or its current needs and personal contingencies.
(e) Such Purchaser has had an opportunity to discuss the Company's business, management and financial affairs with the Company's management and, subject to the representations and warranties in Section 3.07, has had the opportunity to review financial and other information related to the Company.
(f) Such Purchaser understands and acknowledges that all certificates representing the Shares shall bear, in addition to any other legends required under applicable securities laws, the following legends: "qualified institutional buyer," The securities represented by this certificate have not been registered under the U.S. Securities Act of 1933, as such term is defined in Rule 144A amended (the "Securities Act"), and may not be transferred except pursuant to registration under the Securities Act or pursuant to an available exemption from registration."
(iig) Such Purchaser is an "accredited investor," ", as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(ch) Such Person is acquiring Purchaser understands and agrees that, simultaneously upon execution of this Agreement, such Purchaser will become party to (i) the additional New Notes to be acquired pursuant to Section 2.2(bAmended and Restated Shareholders' Agreement dated July 13, 1999 among the Company, Circuit Holdings, LLC, ▇▇▇▇▇ ▇. ▇▇▇▇▇, III and the Purchasers (the "AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT") hereof for its own account and (or for accounts over which it exercises investment authority)ii) that certain Registration Rights Agreement dated July 13, for investment 1999, among the Company and not with a view to the resale or distribution thereofsuch Purchasers.
(di) Such Person Purchaser understands and agrees that he, she or it may not sell or dispose of any of the additional New Notes will be issued in a transaction Shares other than (i) pursuant to an effective registration statement, unless the sale or other disposition is exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investmentlaws, and (Dii) has such knowledge in compliance with the Amended and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentRestated Shareholders' Agreement.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) The Purchaser understands that the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, of the Securities Act and any applicable state securities or blue sky laws.
(ii) there is no existing public The Securities to be acquired by the Purchaser pursuant to this Agreement are being acquired for its own account and without a view to the resale or distribution of such Securities or any interest therein other market for than in a transaction exempt from registration under the New NotesSecurities Act.
(biii) Such Person (i) The Purchaser is a an "qualified institutional buyer,accredited investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(civ) Such Person is acquiring the additional New Notes The Purchaser has sufficient knowledge and experience in financial and business matters so as to be acquired pursuant to Section 2.2(b) hereof for capable of evaluating the merits and risks of its own account (or for accounts over which it exercises investment authority)in the Securities and the Purchaser is capable of bearing the economic risks of such investment, for including a complete loss of its investment and not with in the Securities. The Purchaser understands that Purchaser's investment in the Securities involves a view to the resale or distribution thereofhigh degree of risk.
(dv) Such Person The Purchaser has been furnished with a copy of the SEC Documents filed by the Company with the SEC since January 1, 2000, and has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of the Securities and other related matters. The Company has made available to the Purchaser or its agents all documents and information relating to an investment in the Securities requested by or on behalf of the Purchaser.
(vi) The Purchaser understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is have not been registered or qualified under the Securities Act or any state securities laws, and such laws may not be offered, sold, pledged or is exempt from such registration or qualificationotherwise transferred, except in compliance with the terms of this Agreement and the Transaction Documents and applicable federal and state securities laws.
(evii) Such Person (A) has been furnished with or has had full access to all The Purchaser understands that the information that it considers necessary or appropriate to make an informed investment decision with respect Securities shall bear a restrictive legend to the New Notesfollowing effect: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, OR TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.
(Bviii) has had an opportunity to discuss with management The Purchaser's principal place of Holding business is in the intended business and financial affairs State of Holding and to obtain information California.
(to ix) Immediately following the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify Closing, the Purchaser will not beneficially own any information furnished to it or to which it had access, (C) can bear voting securities of the economic risk of Company other than the Securities.
(x) an investment The Purchaser does not have any agreements, arrangements or understandings with any other Person with regard to acquiring, holding, voting or disposing of any securities of the Company other than as set forth or referred to in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentthis Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (First Look Media Inc)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501(a) of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Shares (collectively, including the Common Stock issuable upon exercise of the Warrants, the “Securities”) to Section 2.2(b) hereof him is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person (i) is Investor understands and agrees that the Securities are being offered in a "qualified institutional buyer," as transaction not involving any public offering within the meaning of the Securities Act, that such term is defined in Rule 144A Securities have not been registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), or (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, in each of cases (i) through (iii) in accordance with any applicable securities laws of any State of the United States, and that it will notify any subsequent permitted purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) Such Person is acquiring Investor understands that the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (Company shall require that the Securities will bear a legend or for accounts over which it exercises investment authority), for investment and not with a view other restriction substantially to the resale or distribution thereof.following effect (it being agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following):
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.Investor:
(ei) Such Person (A) has been furnished with or has had full access is able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated hereby;
(y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and
(iii) has the ability to bear the economic risks of its prospective investment and form an investment can afford the complete loss of such investment.
(e) Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Securities, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. Each Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investor to rely thereon. The Investor has not directly or indirectly, including through a broker or finder, (i) engaged in or received any general solicitation with respect to its investment in the New Notes to protect its own interest offer and sale of the Securities, or (ii) published or received any advertisement in connection with the offer and sale of the Securities.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 2 of this Agreement, each Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such investmentInvestor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to the Investor in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Share Purchase Agreement (N-Viro International Corp)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Shares for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been and, except as contemplated in this Agreement, will not be registered under the Securities Act and that such Shares may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities Laws of any State of the United States, and that it will notify any subsequent purchaser of Shares from it of the resale restrictions referred to above, as such term is defined in Rule 144A applicable.
(c) The Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Shares will bear a legend or other restriction substantially to the following effect (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under it being agreed that if the Securities Act.
Shares are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authorityTHE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF SUCH SECURITIES AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF SUCH SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. SUCH SECURITIES MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF FEBRUARY 3, 2016.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration The Investor, either alone or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additiontogether with its Representatives, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge knowledge, sophistication and experience in business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of the prospective investment in the Shares, and form an has so evaluated the merits and risks of such investment. The Investor understands that the Investor must bear the economic risk of this investment in the Shares indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment.
(e) The Investor acknowledges that the Investor and/or its Representatives (i) have conducted its own investigation of the Company and the terms of the Shares, (ii) have had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Shares, and (iii) have been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as deemed necessary in connection with the decision to purchase the Shares. The Investor further acknowledges that it has had such opportunity to consult with their own counsel, financial and tax advisors and other professional advisers as is sufficient for purposes of the purchase of the Shares.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 3 of this Agreement, the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to (i) the Company or any of its investment in Subsidiaries or (ii) any other information provided to the New Notes to protect Investor or any of its own interest Representatives in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tribune Publishing Co)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Securities to Section 2.2(b) hereof is intended to be exempt it are being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to any other exemption from the registration requirements of the Securities Act, including Rule 144A 144 under the Securities Act (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or any Company Subsidiary, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY COMPANY SUBSIDIARY, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE STATE AND FEDERAL SECURITIES LAWS, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE GOVERNANCE AGREEMENT, DATED AS OF SEPTEMBER 13, 2020, AMONG CONSOLIDATED COMMUNICATIONS HOLDINGS, INC. AND THE INVESTOR NAMED THEREIN.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
The Investor: (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities; (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities; and (iii) it has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and the Company Subsidiaries and to ask questions of the Company, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in this Agreement or any other Transaction Document or in any certificate provided at the Initial Closing or the Second Closing, as applicable, or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in this Agreement (including any references in such Section 4 to the SEC Reports) or any other Transaction Document or in any certificate provided at the Initial Closing or the Second Closing, as applicable, such Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to its investment in the New Notes Company or any Company Subsidiaries or with respect to protect its own interest any other information provided to the Investor in connection with such investmentthe Transactions.
Appears in 1 contract
Sources: Investment Agreement (Consolidated Communications Holdings, Inc.)
Private Placement. (a) Such Person understands that (i) Investor understands that the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Common Shares is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(cii) Such Person Investor represents and warrants that it is acquiring the additional New Notes to be Common Shares acquired by such Investor pursuant to Section 2.2(b) hereof this Agreement for its investment for Investor's own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofof such Common Shares or any interest therein other than in a transaction that is registered or exempt from registration under the Securities Act.
(diii) Such Person Investor represents and warrants that it is an "accredited investor" as such term is defined in Regulation D under the Securities Act.
(iv) Investor represents and warrants that it (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Common Shares, and is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Common Shares acquired by it hereunder.
(v) Investor has been given the opportunity to ask questions of, and receive answers from, the Company regarding the Company, the terms and conditions of the Common Shares and related matters, and has been furnished with the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Common Shares.
(vi) Investor understands that the additional New Notes will be issued Common Shares that it is acquiring are characterized as "restricted securities" under the Securities Act in as much as they are being acquired from the Company in a transaction exempt from the registration or qualification requirements of not involving a public offering and that under the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionregulations, such Person understands that such securities must Common Shares may be held indefinitely unless a subsequent disposition thereof is registered or qualified resold without registration under the Securities Act and such laws or is exempt from such registration or qualificationonly in certain limited circumstances. Investor understands that the certificates evidencing the Common Shares will bear a restrictive legend substantially as follows: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF, AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
(evii) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesInvestor has, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentits decision to acquire the Common Shares, relied solely upon the Exchange Act Reports and the representations and warranties of the Company contained in this Agreement.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Aehr Test Systems)
Private Placement. (a) Such Person i. The Subscriber understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Shares being subscribed for are intended to be exempt from registration under the Securities Act, applicable U.S. state securities laws and the laws of any non-U.S. jurisdictions by virtue of the private placement exemption from registration provided in Section 4(a)(2) of the Securities Act pursuant to Section 4(2) thereofand Rule 506 of Regulation D promulgated thereunder, exemptions under applicable U.S. state securities laws and exemptions under the laws of any non-U.S. jurisdictions, and the Subscriber agrees that any Shares acquired by the Subscriber under this Subscription Agreement may not be Transferred (iias defined below) there is no existing public in any manner that would require the Fund to register the Shares under the Securities Act, under any U.S. state securities laws or other market for under the New Noteslaws of any non-U.S. jurisdictions. The Subscriber was offered the Shares through private negotiations, not through any general solicitation or general advertising.
(b) Such Person ii. The Subscriber represents and warrants that it is (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "“accredited investor," ” as such term is defined in Rule 501(a) of Regulation D under the Securities Act (an “Accredited Investor”) and that it has so indicated in the Investor Questionnaire, (ii) a “qualified purchaser” within the meaning of Section 2(a)(51) of the 1940 Act (a “Qualified Purchaser”) and that it has so indicated in the Investor Questionnaire, (iii) a “qualified client” as defined in Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), and (iv) not subject to and is not aware of any facts that would cause the Subscriber (or anyone who is treated as a beneficial owner of the Shares being purchased by the Subscriber) to be subject to any of the “Bad Actor” disqualifications as described in Rule 506(d)(1)(i) to (viii) under the Securities Act. If at any time the Subscriber holds Shares, the Subscriber shall no longer qualify as an Accredited Investor or a Qualified Purchaser, it shall promptly notify the Fund.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person iii. The Subscriber understands that the offering and sale of the Shares in non-U.S. jurisdictions may be subject to additional New Notes will be issued restrictions and limitations and represents and warrants that it is acquiring its Shares in a transaction exempt from compliance with all applicable laws, rules, regulations and other legal requirements applicable to the registration or qualification Subscriber, including the legal requirements of jurisdictions in which the Securities Act Subscriber is resident and applicable state securities laws and that Holding's reliance on in which such exemption acquisition is predicated upon the Lenders' representations contained hereinbeing consummated. In additionfurtherance, such Person understands that such securities must be held indefinitely unless and not in limitation, of the foregoing, if the Subscriber is a subsequent disposition thereof is registered or qualified under resident of any of the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment jurisdictions set forth in the New Notes indefinitely Memorandum, the Subscriber represents, warrants and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so covenants as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment specified in the New Notes to protect its own interest in connection with Memorandum hereto for such investment.jurisdiction.
Appears in 1 contract
Sources: Subscription Agreement (Monroe Capital Enhanced Corporate Lending Fund)
Private Placement. (a) Such Person understands Sheridan acknowledges that (i) the issuance of the additional New Notes Merger Shares pursuant to Section 2.2(b) hereof 1.4 is intended to be exempt from registration under the Securities Act, by virtue of Regulation D of the Securities Act pursuant to and/or Section 4(2) thereofof the Securities Act, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as that its stockholders, upon receipt of such term is defined in Rule 144A Merger shares, may not sell such shares, unless such shares subsequently are registered under the Securities Act or (ii) an exemption from such registration is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person available. Sheridan understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities Merger Shares must be held indefinitely unless a subsequent disposition thereof is they are subsequently registered or qualified under the Securities Act and such laws or is exempt an exemption from such registration or qualificationis available. Sheridan understands and agrees that, in order to ensure compliance with the restrictions referred to herein, Hirsch may issue appropriat▇ "▇▇▇p transfer" instructions to its transfer agent. Sheridan understands that the following legend (and such other legends as Hirsch deems appropriate) s▇▇▇▇ ▇e placed on such shares: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
(e" Hirsch shall use commercial▇▇ ▇▇▇sonable efforts to meet the requirements of Rule 144(c) Such Person (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make Securities Act and, if an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect opinion is required by Hirsch for transfer of such investment▇▇▇▇▇s, and (D) has Hirsch shall retain counsel ▇▇ ▇▇termine whether such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentopinion may be rendered.
Appears in 1 contract
Private Placement. (a) Such Person understands The Company acknowledges that (i) the issuance of the additional New Notes shares of Parent Common Stock pursuant to Section 2.2(b) hereof 3.1 is intended to be exempt from registration under the Securities Act, by virtue of Regulation D of the Securities Act pursuant to and/or Section 4(2) thereofof the Securities Act, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as that its stockholders, upon receipt of such term is defined in Rule 144A shares of Parent Common Stock, may not sell such shares, unless such shares of Parent Common Stock subsequently are registered under the Securities Act or (ii) an exemption from such registration is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person available. The Company understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is they are subsequently registered or qualified under the Securities Act and such laws or is exempt an exemption from such registration or qualificationis available. Parent is under no obligation to register the resale of the shares of Parent Common Stock to be issued pursuant to Section 3.1. The Company understands and agrees that, in order to ensure compliance with the restrictions referred to herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent. The Company understands that the following legend (and such other legends as Parent deems appropriate) shall be placed on such shares: “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
(e” Parent shall use commercially reasonable efforts to meet the requirements of Rule 144(c) Such Person (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make Securities Act and, if an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect opinion is required by Ambassadors for transfer of such investmentshares, and (D) has Ambassadors shall retain counsel to determine whether such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentopinion may be rendered.
Appears in 1 contract
Private Placement. (a) Such Person understands The Holders acknowledge that (i) the issuance 12/31 Shares are being, and any of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from 6/30 Shares will be, issued without registration under the Securities Act pursuant to of 1933, as amended (the “Securities Act”), and applicable state securities laws in reliance upon the exemption from registration provided by Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for the New Notes.
(b) Such Person under state securities laws. Each Holder represents and warrants to SoftBrands that: (i) the Holder is a "qualified institutional buyer," an “accredited investor” as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
, is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision similar to that involved in the purchase of the Shares, (cii) Such Person the Holder has received and reviewed the reports filed by SoftBrands with the Securities and Exchange Commission (the “SEC”), including, without limitation, the risks relating to SoftBrands described in SoftBrands’s annual report on Form 10-K for the year ended September 30, 2008, and has requested, received, reviewed and considered all other information it deemed relevant in making an informed decision to purchase the Shares; (iii) the Holder understands that the Shares are “restricted securities” and have not been registered under the Securities Act and is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Shares in the ordinary course of its business and for its own account for investment only, and has no arrangement or understanding with any other persons regarding the distribution of such Shares (this representation and warranty not limiting the Holder’s right to sell Shares pursuant to the Registration Statement (as defined below) or otherwise); and (iv) the Holder will not, directly or indirectly, offer, sell or otherwise dispose of (or for accounts over which it exercises investment authority)solicit any offers to buy, for investment and not with a view to the resale purchase or distribution thereof.
(dotherwise acquire) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements any of the Shares except in compliance with the Securities Act and Act, applicable state securities laws and the respective rules and regulations promulgated thereunder. Each Holder acknowledges and agrees that Holding's reliance on such exemption is predicated upon any certificates representing the Lenders' representations contained herein. In additionShares will be imprinted with the following restrictive legend: THESE SECURITIES HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationAS AMENDED (THE “SECURITIES ACT”) AND APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.
Appears in 1 contract
Private Placement. (a) Such Person i. The Subscriber understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Shares are intended to be exempt from registration under the Securities Act, applicable U.S. state securities laws and the laws of any non-U.S. jurisdictions by virtue of the private placement exemption from registration provided in Section 4(a)(2) of the Securities Act pursuant to Section 4(2) thereofand Rule 506 of Regulation D and Regulation S promulgated thereunder, exemptions under applicable U.S. state securities laws and exemptions under the laws of any non-U.S. jurisdictions, and the Subscriber agrees that neither its Capital Commitment nor any Shares acquired by the Subscriber may be Transferred (iias defined below) there is no existing public or other market for in any manner that would require the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A Fund to register the Shares under the Securities Act Act, under any U.S. state securities laws or under the laws of any non-U.S. jurisdictions. The Subscriber was offered the Shares through private negotiations, not through any general solicitation or general advertising.
ii. The Subscriber understands that the Fund requires each investor in the Fund to be either (iiA) is an "“accredited investor," ” as such term is defined in Rule 501(a) of Regulation D of the Securities Act (“Accredited Investor”), or (B) not “U.S. persons” as within the meaning of Regulation S under the Securities Act, and the Subscriber represents and warrants that it is either (A) an Accredited Investor or (B) not a “U.S. person” in accordance with Regulation S, as indicated in the Investor Questionnaire, and is not investing for the direct or indirect benefit of a U.S. Person as within the meaning of Regulation S under the Securities Act.
iii. If the Subscriber is not an Accredited Investor, then Subscriber further represents and warrants that: (a) no offers to sell or to purchase the Shares were made to the Subscriber or by the Subscriber while the Subscriber was in the United States; (b) the Subscriber was not in the United States at the time the offer was accepted; and (c) Such at the time the Subscriber’s subscription for Shares was originated, the Subscriber was outside the United States, except for offers and sales to discretionary or similar accounts (other than an estate or trust) held for the benefit or account of a non-U.S. Person (as within the meaning of Regulation S under the Securities Act) by a dealer or other professional fiduciary organized, incorporated or resident in the United States.
iv. The Subscriber understands that the offering and sale of the Shares in non-U.S. jurisdictions may be subject to additional restrictions and limitations and represents and warrants that it is acquiring its Shares in compliance with all applicable laws, rules, regulations and other legal requirements applicable to the additional New Notes Subscriber, including the legal requirements of jurisdictions in which the Subscriber is resident and in which such acquisition is being consummated. In furtherance, and not in limitation, of the foregoing, if the Subscriber is a resident of any of the jurisdictions set forth in the Memorandum, the Subscriber represents, warrants and covenants as specified in the Memorandum hereto for such jurisdiction.
v. The Shares to be acquired pursuant to Section 2.2(b) hereof hereunder are being acquired by the Subscriber for its the Subscriber’s own account (or for accounts over which it exercises investment authority), for investment purposes only and not with a view to the resale or distribution thereof.
distribution. The Subscriber shall not, directly or indirectly, Transfer all or any portion of such Shares (dor solicit any offers to buy, purchase or otherwise acquire or take a pledge or charge of all or any part of such Shares) Such Person understands that the additional New Notes will be issued except in a transaction exempt from accordance with (i) the registration or qualification requirements provisions of the Securities Act and or an exemption from such registration provisions, (ii) any applicable U.S. federal or state or non-U.S. securities laws and that Holding's reliance on such exemption is predicated upon (iii) the Lenders' representations contained hereinterms of this Subscription Agreement and the Declaration of Trust. In addition, such Person The Subscriber understands that such securities must it may be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access required to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Shares for a substantial period of time because, among other reasons, the offering and sale of the Shares have not been registered under the Securities Act and, therefore, the Shares cannot be sold other than through a privately negotiated transaction unless they are subsequently registered under the Securities Act or an exemption from such registration is available. “Transfer” (or any derivative thereof) shall mean to protect its own interest sell, offer for sale, agree to sell, exchange, transfer, assign, pledge, hypothecate, grant any option to purchase or otherwise dispose of or agree to dispose of, in connection with such investmentany case whether directly or indirectly.
Appears in 1 contract
Private Placement. (a) Such Person The Purchaser understands and agrees with the Company that (i) the issuance offer and sale of the additional New Notes pursuant to Section 2.2(b) hereof Shares is intended to be exempt from registration under the Securities Act pursuant to by virtue of the provisions of Section 4(2) thereof, of the Securities Act and Rule 506 promulgated by the Commission thereunder and (ii) there is can be no existing public assurance that the Purchaser will be able to sell or other market for dispose of the New NotesShares.
(b) Such Person The Purchaser represents and warrants to the Company that:
(i) the Shares to be acquired by it pursuant to this Agreement are being acquired for its own account and without a view to the distribution or resale of such Shares or any interest therein; provided that the provisions of this Section shall not prejudice the Purchaser's right at all times to sell or otherwise dispose of all or any part of the Shares so acquired by it pursuant to a registration under the Securities Act or an exemption from such registration available under the Securities Act;
(ii) the Purchaser is a an "qualified institutional buyer,accredited investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated by the Commission under the Securities Act.;
(ciii) Such Person the Purchaser is acquiring not a broker or dealer (as defined in sections 3(a)(4) and 3(a)(5) of the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authorityExchange Act), for investment and not member of a national securities exchange, or person associated with a view to broker or dealer as defined in Section 3(a)(18) of the resale Exchange Act, other than a business entity controlling or distribution thereof.under common control with such broker, dealer, member or associated person;
(div) Such Person understands that the additional New Notes will be issued in a transaction exempt from execution, delivery and performance of this Agreement is within the registration Purchaser's powers (corporate or qualification requirements of the Securities Act otherwise) and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered has been duly authorized by all requisite action (corporate or qualified under the Securities Act and such laws or is exempt from such registration or qualification.otherwise);
(ev) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) Purchaser has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Shares and the Purchaser is capable of bearing the economic risks of such investment and is able to protect bear a complete loss of its investment in the Shares;
(vi) in evaluating the suitability of an investment in the Shares, the Purchaser has not relied upon any representations or other information (whether oral or written) made by or on behalf of the Company other than as set forth in the SEC Reports, this Agreement and the other Transaction Documents;
(vii) the Purchaser has adequate means of providing for its current needs and contingencies and has no need for liquidity in its investment in the Company;
(viii) the Purchaser confirms that the Company has made available to Purchaser the opportunity to ask questions of, and receive answers from, the Company concerning the Company and the activities of the Company;
(ix) the Purchaser has been advised that this offering has not been registered with, or reviewed by, the Commission as this offering is intended to be a non-public offering pursuant to section 4(2) of the Securities Act or Regulation D promulgated by the Commission thereunder. The Purchaser understands that no securities administrator of any state has made any finding or determination relating to the fairness of this investment and that no securities administrator of any state has recommended or endorsed, or will recommend or endorse, the offering of the Shares. The Purchaser represents that its Shares are being purchased for its own interest account, for investment purposes only and not with a view towards distribution or resale to others;
(x) the Purchaser acknowledges that no general solicitation or general advertising (including communications published in connection any newspaper, magazine or other broadcast) has been received by it and that no public solicitation or advertisement with respect to the offering of the Shares has been made to it;
(xi) the Purchaser has relied solely upon the advice of his own tax and legal advisors with respect to the tax and other legal aspects of this investment; and
(xii) the Purchaser's overall commitment to investments which are not readily marketable is not disproportionate to its net worth; its investment in the Company will not cause such investmentoverall commitment to become excessive; and it can afford to bear the loss of its entire investment in the Company.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) The Seller is aware that (A) the issuance of Buyer Common Stock to be issued to the additional New Notes Seller in the Sale will not be issued pursuant to Section 2.2(b) hereof is intended to be exempt from a registration statement under the Securities Act pursuant to Act, but will instead be issued in reliance on the exemption from registration set forth in Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under of the Securities Act or (ii) is an "accredited investor," as such term is defined and in Rule 501(a) of Regulation D under the Securities Act, and (B) neither the Sale nor the issuance of such Buyer Common Stock has been approved or reviewed by the SEC or by any other Governmental Authority.
(cii) Such Person The Seller is acquiring aware that (i) the additional New Notes Buyer Common Stock to be acquired issued in the Sale cannot be offered, sold or otherwise transferred, assigned, pledged or hypothecated unless such Buyer Common Stock is registered under the Securities Act or unless an exemption from registration is available, (ii) the Buyer is under no obligation to file a registration statement with respect to the Buyer Common Stock to be issued to the Seller in the Sale, and (iii) the provisions of Rule 144 will permit resale of the Buyer Common Stock to be issued to the Seller in the Sale only under limited circumstances, and such Buyer Common Stock must be held by the Seller for at least one year before it can be sold pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofRule 144.
(diii) Such Person The Seller understands that the additional New Notes there will be issued placed on the certificate or certificates representing such Buyer Common Stock legends identical or similar in a transaction exempt from effect to the registration following legend (together with any other legend or qualification requirements of the Securities Act and legends required by applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained hereinor otherwise): "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. In additionTHE SALE, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationTRANSFER OR VOTING OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF A STOCK PURCHASE AGREEMENT BY AND AMONG CALIPER TECHNOLOGIES CORP.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.THE BERWIND COMPANY LLC AND BERWIND CORPORATION. COPIES OF THE AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF CALIPER TECHNOLOGIES CORP. AT THE PRINCIPAL EXECUTIVE OFFICES OF CALIPER TECHNOLOGIES CORP.."
Appears in 1 contract
Sources: Stock Purchase Agreement (Caliper Technologies Corp)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes The Shares to be acquired pursuant to Section 2.2(b) hereof by such Purchaser hereunder will be acquired for its such Purchaser’s own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution of any part thereof.
. Such Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act. Such Purchaser is aware that (di) Such Person understands that the additional New Notes offer and sale of the Shares to it have not been, and, except as contemplated by the Registration Rights Agreement, will be issued not be, registered under the Securities Act or any state securities Laws and are being offered and sold in a transaction exempt reliance upon exemptions from the registration or qualification requirements of the Securities Act; and (ii) the Shares purchased hereunder may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws and Laws pursuant to registration or exemption from registration requirements thereunder; provided, however, that Holding's reliance on by making such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person Purchaser does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
(b) Such Purchaser understands that, unless sold pursuant to a registration statement that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified has been declared effective under the Securities Act and such laws or is exempt from such registration in compliance with Rule 144 thereunder, the certificates evidencing the Shares will bear a legend or qualificationother restriction substantially to the following effect (it being agreed that if the Shares are not certificated, other appropriate restrictions shall be implemented or notated to give effect to the following): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.”
(ec) Such Person Purchaser (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Shares; and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(d) Such Purchaser (i) has conducted its own investigation of the Company and the Shares; (ii) has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary in connection with its decision to purchase the Shares; and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations, and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deems necessary in connection with its decision to purchase the Shares. Each Purchaser further acknowledges that it has had the opportunity to consult with its own counsel, financial, tax, and other professional advisers as it believes is sufficient for purposes of its purchase of the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 hereof or the right of each Purchaser to rely thereon.
(e) Such Purchaser understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements, and agreements.
(f) Except for the representations and warranties contained in Section 2 hereof, each Purchaser acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Purchaser has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in the New Notes Subsidiaries or with respect to protect its own interest any other information provided to such Purchaser in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Eclipse Resources Corp)
Private Placement. (a) Such Person Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Securities have not been registered by the Company and are intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, thereof and (ii) there is no existing public or other market for the New NotesSecurities.
(b) Such Person Purchaser (ieither alone or together with its advisors) is a "qualified institutional buyer," has sufficient knowledge and experience in financial and business matters so as such term is defined to be capable of evaluating the merits and risks of its investment in Rule 144A under the Securities Act or (ii) and is an "accredited investor," as capable of bearing the economic risks of such term is defined in Rule 501(a) of Regulation D under the Securities Actinvestment.
(c) Such Person Except as otherwise set forth herein, such Purchaser is acquiring the additional New Notes Securities to be acquired pursuant to Section 2.2(bhereunder (and will acquire the Conversion Shares and Warrant Shares) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the public resale or distribution thereofthereof in violation of any securities law.
(d) Such Person Purchaser understands that the additional New Notes Securities will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws laws, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person Purchaser (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesSecurities and that it has requested from the Company, (B) has had an opportunity to discuss with management of Holding the Company the intended business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes Securities indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Securities and to protect its own interest in connection with such investment.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person The WDI Stockholder is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Merger Shares for its his or her own account (or for accounts over which it exercises investment authority), for investment and not with a view to towards the resale resale, transfer or distribution thereof, nor with any present intention of distributing the Merger Shares within the meaning of the Securities Act.
(b) The WDI Stockholder acknowledges that the Merger Shares have not been registered under the Securities Act, nor qualified under any state securities laws, and that they are being offered and sold pursuant to an exemption from such registration and qualification based in part upon the WDI Stockholder's representations contained herein.
(c) The WDI Stockholder has been furnished access to such information and documents as he or she has requested and has been afforded an opportunity to ask questions of and receive answers from representatives of West and WDI concerning the terms and conditions of this Agreement and the acquisition of the Merger Shares contemplated hereby.
(d) Such Person The WDI Stockholder understands and acknowledges that he or she must bear the economic risk of this investment in the Merger Shares unless and until the Merger Shares are registered pursuant to the Securities Act and qualified under applicable state securities laws or the WDI Stockholder obtains an opinion of counsel in form and substance reasonably satisfactory to West and its counsel, that such registration and qualification is not required. The WDI Stockholder acknowledges and understands that West is under no obligation to register the additional New Notes Merger Shares. The WDI Stockholder further understands and acknowledges that there is no assurance that any exemption from the Securities Act will be issued available, or, if available, that such exemption will allow the WDI Stockholder to sell or otherwise transfer any or all the Merger Shares, in the amounts, or at the times the WDI Stockholder might propose.
(e) The Investor is aware of the adoption of Rule 144 by the SEC under the Securities Act, which permits limited public resales of securities acquired in a transaction exempt from non-public offering, subject to the satisfaction of certain conditions, including (without limitation) the availability of certain current public information about the issuer, the resale occurring only after the holding period required by Rule 144 has been satisfied, the sale occurring through an unsolicited "broker's transaction," and the amount of securities being sold during any three-month period not exceeding specified limitations.
(f) The WDI Stockholder will not transfer the Merger Shares in violation of the Securities Act, the Securities Exchange Act of 1934, as amended, or the rules promulgated thereunder, including Rule 144 under the Securities Act. The WDI Stockholder agrees that it will not dispose of the Merger Shares unless and until it has complied with all requirements of the Restricted Stock Agreement applicable to the disposition of Merger Shares and it has provided West with written assurances, in substance and form satisfactory to West, that the proposed disposition does not require registration of the Merger Shares under the Securities Act or all appropriate action necessary for compliance with the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such or with any exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified from registration available under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (Aincluding Rule 144) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmenttaken.
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Private Placement. Purchaser represents and warrants to the Company that:
(ai) Such Person Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under any of the Securities Act and there can be no assurance that Purchaser will be able to sell or dispose of the Securities to be purchased by Purchaser;
(ii) Purchaser's financial situation is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes that Purchaser can afford to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) holding the Securities acquired hereunder for an indefinite period of time, Purchaser has adequate means for providing for Purchaser's needs and contingencies and can afford to suffer the complete loss of the investment in the New Notes indefinitely Securities;
(iii) Purchaser understands that the Securities acquired hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there are substantial restrictions on the transferability of the Securities as set forth herein, in the Securities and (y) a total loss in respect of such investmentthe Shareholders Agreement, and that for an indefinite period following the date hereof there will be no public market for any of the Securities and that, accordingly, it may not be possible for Purchaser to sell the Securities in case of emergency or otherwise;
(Div) has such knowledge Purchaser and experience his, her or its representatives, including his, her or its professional, financial, tax and other advisors, have carefully reviewed all documents available to them in business and financial matters so as to enable it to understand and evaluate connection with the risks of and form an investment decision with respect to its investment in the New Notes Securities, and Purchaser understands and has taken cognizance of all the risks related to protect its own interest in connection with such investment;
(v) Purchaser and his, her or its representatives have been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company and its representatives concerning the Company and each of its subsidiaries and concerning the terms and conditions of the acquisition of the Securities, and related matters and to obtain all additional information which Purchaser or his, her or its representatives deem necessary; and
(vi) all information which Purchaser has provided to the Company and its representatives concerning Purchaser and Purchaser's financial position is true, complete and correct.
Appears in 1 contract
Sources: Stock Option Agreement (Brand Scaffold Services Inc)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the issuance of the additional New Notes pursuant Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereofand that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and covenants of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Shares; and (iiiii) there is no existing acquiring Shares for its own account and not with a view towards, or for resale in connection with, the public sale or other market for the New Notes.
(b) Such Person (i) is distribution thereof in a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under manner that would violate the Securities Act.
(b) The Investor understands and agrees that the Shares are being issued in a transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been registered under the Securities Act and that the Shares may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act, (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States.
(c) Such Person is acquiring the additional New Notes The Investor (i) has such sufficient knowledge and experience in financial and business matters as to be acquired pursuant capable of evaluating the merits and risks of its prospective investment in the Shares, and (ii) has the ability to Section 2.2(b) hereof for bear the economic risks of its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofprospective investment.
(d) Such The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Shares, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to invest in the Shares, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and receive answers thereto, each as it deemed necessary in connection with the decision to invest in the Shares. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the investment in the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investor to rely thereon, or any of the other express terms and conditions of this Agreement.
(e) Except for the representations and warranties contained in Section 2 of this Agreement, the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to the Investor in connection with the transactions contemplated by this Agreement.
(f) The Investor understands that upon the additional New Notes will be issued in a transaction exempt from original issuance of the registration or qualification Shares, and until such time as the same is no longer required under applicable requirements of the Securities Act and or applicable state securities laws laws, any certificates or other instruments representing the Shares, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear customary legends referencing such restrictions on transferability, and that Holding's reliance the Company will make a notation on such exemption is predicated upon its records and give instructions to any registrar or transfer agent of the Lenders' representations contained Shares in order to implement the restrictions on transfer set forth and described herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(eg) Such Person (A) The Investor understands that no U.S. or foreign government or regulatory authority or agency has been furnished with passed on or has had full access to all made any recommendation or endorsement of the information that it considers necessary Shares or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management fairness or suitability of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect Shares nor have such authorities passed upon or endorsed the merits of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks issuance of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentShares.
Appears in 1 contract
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes Redeemable Preferred Share and/or the Convertible Preferred Units and, upon the redemption of the OP Units and the Convertible Preferred Units (assuming, in the case of the OP Units, that the Company elects to deliver Common Shares on such redemption, and in the case of the Convertible Preferred Units, their prior conversion to Conversion OP Units), the Redemption Stock and the Conversion OP Units (collectively, the “Securities”) is being made in reliance on a private placement exemption from registration under the Securities Act; and (iii) acquiring the Securities for its own account and not with a view to, or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities Laws. The Investor is acquiring the Securities hereunder in the ordinary course of its business. The Investor does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute or effect any distribution of any of the Securities to or through any Person. The Investor is not a registered broker- dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require it to be so registered as a broker- dealer. The Investor acknowledges that, in connection with any purchase of Securities, the Company shall have the right to request evidence reasonably satisfactory to the Company with respect to the Investor’s status as an “accredited investor” as of the applicable Closing.
(b) The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except for the registration rights provided for in the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to Section 2.2(b) hereof is intended to be exempt an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, pursuant to Section 2.2(b) hereof for its own account the Articles Supplementary, the Redeemable Preferred Share is not transferable, except and only to the extent set forth therein, and that with respect to the other Securities, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company and/or Opco may require that such Securities will bear, in addition to any legend required by the Charter, the A&R Opco LPA and the Maryland General Corporation Law, and any legend as required by the “blue sky” laws of any state, a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY AND OPCO THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(d) Such Person The Investor (i) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Securities, (ii) has evaluated the merits and risks of such investment, and (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment. The Investor acknowledges that an investment in the Securities is speculative and involves a high degree of risk. The Investor understands that nothing in this Agreement or any other materials presented by or on behalf of the additional New Notes will be issued Company to the Investor in a transaction exempt from connection with the registration or qualification requirements purchase of the Securities Act constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and applicable state securities laws and that Holding's reliance on such exemption is predicated upon investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationSecurities.
(e) Such Person (A) The Investor acknowledges that it has had the opportunity to review the SEC Reports and Schedules and has been furnished with or afforded (1) the opportunity to ask such questions as it has had full deemed necessary of, and to receive answers from, Representatives of the Company concerning the terms and conditions of the sale of Securities and the merits and risks of investing in the Securities, (2) access to all information about the Company and its Subsidiaries and their respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment, and (3) the opportunity to obtain such additional information that it considers the Company possesses or can acquire without unreasonable effort or expense that is necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.
(f) The foregoing provisions of this Section 6.5 do not limit or modify the representations and warranties of the Company and Opco contained in Section 5 of this Agreement or the right of the Investor to rely on such representations and warranties.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Realty Capital Hospitality Trust, Inc.)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes Series E Preferred Stock, the Common Stock and the Common Stock issuable upon conversion of the Series E Preferred Stock being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof is intended being made in reliance on a private placement exemption from registration under the Securities Act; and (iii) acquiring the Securities for its own account.
(b) The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the registration rights provided for in the Stockholders Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to be exempt an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
The Investor: (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes Securities and (ii) has the ability to protect bear the economic risks of its prospective investment and can afford the complete loss of such investment. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties, provided that the Investors acknowledge and agree that, other than the representations and warranties in Section 4 of this Agreement, there are no other representations and warranties of the Company either express or implied (the foregoing, however, does not limit the right of the Investor to bring, or in any way restrict or otherwise limit, any action or proceeding based upon fraud).
(e) The Investor acknowledges that (i) it has conducted its own interest investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities, (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities, and (iv) any projections, estimates or forecasts of future results or events provided by or on behalf of Company are subject to uncertainty and to the assumptions used in their preparation. The Investor further acknowledges that it has had such investmentopportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties, provided that the Investors acknowledge and agree that, other than the representations and warranties in Section 4 of this Agreement, there are no other representations and warranties of the Company either express or implied (the foregoing, however, does not limit the right of the Investor to bring, or in any way restrict or otherwise limit, any action or proceeding based upon fraud).
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Appears in 1 contract
Sources: Securities Purchase Agreement (Parkway Properties Inc)
Private Placement. (a) Such Person understands The Purchaser acknowledges that (i) the issuance Shares have not been registered under the Securities Act, or the securities laws of the additional New Notes any state or other jurisdiction and can only be resold pursuant to Section 2.2(ban effective Registration Statement (a "Registration Statement") hereof is intended to be exempt from registration under the Securities Act or pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notesan exemption thereunder.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person The Purchaser represents and warrants that it is acquiring the additional New Notes Shares to be acquired purchased by it pursuant to Section 2.2(b) hereof this Agreement for its investment for the Purchaser's own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution of the Shares or any interest therein other than in a transaction that is registered or exempt from registration under the Securities Act and any applicable state laws.
(c) The Purchaser represents and warrants to the Company that (i) it is an "accredited investor" as such term is defined in Regulation D under the Securities Act; (ii) it has previously invested in securities of companies in the biotechnology sector and has (either alone or together with its advisors) such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in the Shares; (iii) it has the ability to bear the economic risks of the investment therein; (iv) it is able, without materially impairing its financial condition, to hold the Shares for an indefinite period of time and to suffer complete loss of its investment; (v) it has fully considered the risks of this investment and stipulates that (1) this investment is suitable only for an investor who is able to bear the economic consequences of a total loss thereof, (2) the Shares represent an investment that involves a substantial degree of risk of loss and (3) there are substantial restrictions on the transferability of the Shares and that, accordingly, it may not be possible for the Purchaser to liquidate its investment; and (vi) there has been no representation by the Company as to the possible future value of the Shares as to any anticipated liquidity events other than the registration rights contained in the Registration Rights Agreement.
(d) Such Person understands that The Purchaser has been given the additional New Notes will be issued in a transaction exempt from opportunity to ask questions of, and receive answers from, the registration or qualification requirements Company regarding the Company, the terms and conditions of the Securities Act Shares and applicable state securities laws related matters, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has otherwise had full access to all the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Shares.
(e) The Purchaser understands that the Shares are characterized as "restricted securities" under the Securities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under the Securities Act and applicable regulations, the Shares may be resold without registration under the Securities Act only in certain limited circumstances. It is understood that the certificates delivered in connection with the Closing evidencing the Shares will bear a restrictive legend.
(f) The Purchaser represents that it considers necessary or appropriate to make an informed understands the tax consequences of this investment decision and it has consulted its own legal, accounting, tax, investment and other advisors with respect to the New Notestax treatment of the investment contained herein by the Purchaser.
(g) The Purchaser has, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentits decision to purchase the Shares, relied solely upon the 2003 Annual Report and the representations and warranties of the Company contained herein and in the Registration Rights Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dov Pharmaceutical Inc)
Private Placement. (a) Such Person understands The Key Employee and the Affiliated Stockholder understand that (i) the issuance offering of the additional New Notes pursuant to Section 2.2(b) hereof shares of Parent Stock hereby is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereofof 1933, as amended, and (ii) there is no existing public or the rules and regulations promulgated thereunder, which exemption depends upon, among other market for things, the New Notesbona fide nature of the investment intent and the accuracy of the Key Employee's and the Affiliated Stockholder's representations expressed herein.
(b) Such Person (i) is a "qualified institutional buyer," The Key Employee and the Affiliated Stockholder are accredited investors as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such that term is defined in Rule 501(a) of Regulation D promulgated under the Securities ActAct of 1933, as amended.
(c) Such Person is acquiring The Key Employee's and the additional New Notes Affiliated Stockholder's financial situations are such that each can afford to be bear the economic risk of holding the shares of Parent Stock acquired pursuant hereunder for an indefinite period of time, and the Key Employee and the Affiliated Stockholder can afford to Section 2.2(b) hereof for its own account (or for accounts over which it exercises suffer the complete loss of the investment authority), for investment and not with a view to in the resale or distribution thereofshares of Parent Stock.
(d) Such Person understands The Key Employee and the Affilated Stockholder understand that the additional New Notes Certificates evidencing the shares of Parent Stock, and any securities issued upon conversion or in respect thereof, will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investmentfollowing legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentAS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED EXCEPT IN COMPLIANCE THEREWITH."
Appears in 1 contract
Sources: Key Employee Stock Purchase Agreement (Mission Critical Software Inc)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) It is an "accredited investor," as such term is defined in Rule 501(a) within the meaning of NI 45-106 and Regulation D under the U.S. Securities Act.
(c) Such Person Act and is acquiring purchasing its Proportionate Share of the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Purchased Preferred Shares as principal, solely for its own account (or for accounts over which it exercises investment authority), for investment purposes and not with a view to the resale to, or for offer or sale in connection with, any distribution thereof.. It represents that:
(di) Such Person it understands that the additional New Notes will be issued in Purchased Preferred Shares and the Exchange Common Shares are being offered on a transaction "private placement" basis exempt from registration under Securities Laws, and, therefore, may not be transferred or sold in the United States except pursuant to the registration or qualification requirements provisions of the U.S. Securities Act or pursuant to an applicable exemption therefrom and applicable subject to state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionregulations, such Person as applicable;
(ii) it understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered no Securities Regulator has reviewed or qualified under passed on the Securities Act and such laws merits of the Purchased Preferred Shares or is exempt from such registration or qualification.the Exchange Common Shares;
(eiii) Such Person it understands that there is no government or other insurance covering the Purchased Preferred Shares or the Exchange Common Shares;
(Aiv) has been furnished it understands that there are risks associated with or has had full access the purchase of the Purchased Preferred Shares and the Exchange Common Shares; and
(v) it understands that there are restrictions on its ability to all resell the information that Purchased Preferred Shares and the Exchange Common Shares under applicable Laws, it considers necessary or appropriate is its own responsibility to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding find out what those restrictions are and to obtain information (to comply with them before selling the extent Holding possessed such information Purchased Preferred Shares or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had accessthe Exchange Common Shares and, (C) can bear the economic risk of (x) an investment except as otherwise set out in the New Notes indefinitely and (y) a total loss Transaction Agreements, neither the Parent nor the Issuer has agreed to take any action to facilitate such resale in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision accordance with respect to its investment in the New Notes to protect its own interest in connection with such investmentapplicable Laws.
Appears in 1 contract
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) The Purchaser has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such sufficient knowledge and experience in business and financial matters so as to enable it the Purchaser to understand and evaluate the risks Bonds, the credit of the District, the collateral and form an investment the Bond terms and that the Purchaser will make its own independent credit analysis and decision to purchase the Bonds based on independent examination and evaluation of the transaction and the information deemed appropriate.
(b) The Purchaser acknowledges that no credit rating has been sought or obtained with respect to the Bonds.
(c) The Purchaser acknowledges that no official statement has been prepared for the Bonds, and that the District will not be entering into a continuing disclosure agreement with respect to the Bonds; provided, however, that the District has agreed to provide certain ongoing information to the Purchaser.
(d) The Purchaser states that (a) it is a wholly affiliate of a commercial bank with total assets of at least $50 million; (b) it is capable of evaluating investment independently; (c) it is exercising independent judgment in evaluating (i) the recommendation of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (the “Placement Agent”) or its investment associated persons; and (ii) the quality of execution of the Purchaser’s transactions by the Placement Agent; and (c) the Purchaser has timely access to material information that is available publicly through established industry sources as defined in Municipal Securities Rulemaking Board (MSRB) Rule G-47;
(e) The Purchaser is purchasing the New Notes to protect Bonds solely for its own interest account , and not with a view to, or in connection with, any distribution, resale, pledging, fractionalization, subdivision or other disposition thereof (subject to the understanding that disposition of Purchaser’s property will remain at all times within its control). The Purchaser has directed that no CUSIP number shall be obtained for the Bonds or that the Bonds be DTC eligible as of their initial purchase.
(f) The Purchaser understands that the Bonds (i) have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and (ii) have not been registered or qualified under any state securities or “Blue Sky” laws, and that the Indenture has not been qualified under the Trust Indenture Act of 1939, as amended.
(g) The Purchaser has been furnished with and has examined the Bonds, the Indenture and other documents, certificates and the legal opinions delivered in connection with the issuance of the Bonds.
(h) The Purchaser understands that the District and the Placement Agent and their respective counsel and Bond Counsel will rely upon the accuracy and truthfulness of the representations and warranties contained herein and hereby consents to such investmentreliance.
(i) The interest rates on the Bonds are reasonable based upon current market conditions and there is no “blending” of the two rates.
Appears in 1 contract
Sources: Bond Purchase Agreement
Private Placement. (a) Such Person understands that The Investor is (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "“accredited investor," as such term is defined in ” within the meaning of Rule 501(a) 501 of Regulation D promulgated under the Securities Act.
; (cii) Such Person is acquiring aware that the additional New Notes to be acquired sale of the Preferred Shares and the Common Stock issuable upon conversion of the Preferred Shares being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof for its own account (or for accounts over which to it exercises investment authority), for investment and not with are being made in reliance on a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt private placement exemption from the registration or qualification requirements of under the Securities Act and applicable state securities laws Laws; and (iii) acquiring the Securities for its own account, not as a nominee or agent, and not with view to the resale or distribution of any part thereof, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionInvestor has no present intention of selling, such Person granting any participation in or otherwise distributing the same in any manner that violates the Securities Act.
(b) The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such securities must Securities have not been and, except as contemplated by the Investor Rights Agreement, will not be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and that such laws Securities may be offered, resold, pledged or is exempt otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to an exemption from such registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or qualification(iv) to the Company or one of the Company Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(ec) Such Person The Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or other restriction substantially to the following effect (it being agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesTHIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY COMPANY SUBSIDIARY, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (to the extent Holding possessed such information or could acquire it without unreasonable effort or expenseA) necessary to verify any information furnished to it or to which it had accessABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE INVESTOR RIGHTS AGREEMENT, DATED AS OF [ ], 2017, AMONG SYNCHRONOSS TECHNOLOGIES, INC. AND THE INVESTOR NAMED THEREIN.”
(Cd) can bear the economic risk of The Investor: (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes Securities; and (ii) has the ability to protect bear the economic risks of its own interest in connection with prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities; (ii) it has had access to the Company’s public filings with the SEC and to certain financial and other information to inform its decision to purchase the Securities; (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and the Company Subsidiaries and to ask questions of the Company, each to inform its decision to purchase the Securities; and (iv) any projections, estimates or forecasts of future results or events provided by or on behalf of the Company are subject to uncertainty and to the assumptions used in their preparation. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or in any certificate provided at Closing, or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Appears in 1 contract
Sources: Securities Purchase Agreement (Synchronoss Technologies Inc)
Private Placement. (a) Such Person Investor understands that and acknowledges that:
(i) The Securities that it is acquiring under this Agreement are being sold pursuant to an exemption from registration under the issuance Securities Act, including (but not limited to) Regulation D promulgated thereunder.
(ii) Its representations and warranties contained herein are being relied upon by the Company as a basis for such exemption under the Securities Act and under the securities laws of various other foreign and domestic jurisdictions. Such Investor further understands that, unless it notifies the Company in writing to the contrary at or before the Closing Date, each of such Investor’s representations and warranties contained in this Agreement will be deemed to have been automatically (and without any further action of the additional New Notes Investor) reaffirmed and confirmed as of the Closing Date, as applicable, taking into account all information received by the Investor.
(iii) No U.S. state or federal agency or any other securities regulator of any state or country has passed upon the merits or risks of an investment in the Securities or made any finding or determination as to the fairness of the terms of the offering of the Securities or any recommendation or endorsement thereof.
(iv) The Securities are “restricted securities” under applicable federal securities laws and that the Securities Act and the rules of the SEC provide in substance that the Investor may dispose of the Securities only pursuant to Section 2.2(b) hereof is intended an effective registration statement under the Securities Act or an exemption therefrom, and the Investor understands that the Company has no obligation, other than as disclosed in the SEC Reports, or intention to be register any of the Securities, or to take action so as to permit sales pursuant to the Securities Act (including Rule 144 thereunder). Accordingly, the Investor understands that under the SEC’s rules, the Investor may dispose of the Securities principally only in “private placements” that are exempt from registration under the Securities Act Act, in which event the transferee will acquire “restricted securities” subject to the same limitations as in the hands of the Investor. Consequently, the Investor understands that the Investor must bear the economic risks of the investment in the Securities for an indefinite period of time. The Investor will not sell, assign, pledge, give, transfer or otherwise dispose of the Securities or any interest therein, or make any offer or attempt to do any of the foregoing, except pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for a registration of the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A Securities under the Securities Act and all applicable State Securities Laws, or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction which is exempt from the registration or qualification requirements provisions of the Securities Act and all applicable state securities laws State Securities Laws. Such Investor understands that that the recordation of the Securities in book-entry form will include a legend substantially in the form indicated in Section 7 (which such Investor has read and understands), and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must Company and its Affiliates shall not be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access required to all the information that it considers necessary or appropriate give effect to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect purported transfer of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate Securities except upon compliance with the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentforegoing restrictions.
Appears in 1 contract
Private Placement. (a) Such Person understands Each Holder represents and warrants to the Company, severally as to itself only and not jointly or as to any other Holder, that (i) the issuance of the additional New Notes all Shares pur chased or otherwise acquired by such Holder pursuant to Section 2.2(b) hereof is intended this Agreement are being or will be acquired by such Holder for such Holder's own account for investment and not with a view to be exempt from registration under resale or distribution within the meaning of the Securities Act pursuant to Section 4(2) thereofof 1933, and as amended (the "Act"), (ii) there such Holder is no existing public an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated under the Act or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A of the Act, (iii) such Holder's financial situation is such that such Holder can afford to bear the economic risk of holding the Shares for an indefinite period of time and suffer complete loss of its investment, (iv) such Holder's knowledge and experience in financial and business matters are such that such Holder is capable of evaluating the merits and risks of an investment in the Shares, and (v) such Holder will not sell or otherwise dispose of any Shares except in compliance with the Act, the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder and the terms of this Agreement, the Stockholders Agreement and the Proxy Agreement (each as defined below). By making payment for, or taking delivery of, any Shares, each Holder shall be deemed to have reaffirmed such representation at and as of the date of such payment or delivery.
(b) Each Holder acknowledges that such Holder will be unable to sell any Shares without either registration under the Securities Act or (ii) is the existence of an "accredited investor," exemption from such registration requirement. Each Holder further acknowledges that the shares of LCA Common Stock into which the original shares will convert by virtue of the Merger, will by virtue of Rule 145 adopted by the Commission be subject to significant restrictions on resale so long as such term is defined the Proxy Agreement remains in Rule 501(a) of Regulation D under the Securities Acteffect.
(c) Such Person is acquiring the additional New Notes Each Holder hereby agrees that each certificate issued to be represent Shares acquired pursuant to Section 2.2(b) hereof this Agreement, or any certificate issued in exchange for its own account (or for accounts over which it exercises investment authority)any similarly legended certificate shall bear the following legend until such time as, for investment and not with a view in the opinion of counsel to the resale or distribution thereof.
(d) Such Person understands that Company, the additional New Notes will be issued in a transaction exempt from legend specified below is no longer required under the registration or qualification applicable requirements of the Securities Act and or applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionor "blue sky" laws: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationAS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investment.
Appears in 1 contract
Sources: Stock Purchase Agreement (Chase Equity Associates L P)
Private Placement. (a) The Units to be acquired by such Purchaser hereunder will be acquired for such Purchaser’s own account and not with a view to the resale or distribution of any part thereof. Such Person understands Purchaser is aware that (i) the issuance offer and sale of the additional New Notes pursuant Units to Section 2.2(b) hereof is intended to be exempt from registration it have not been, and, except as contemplated by the Registration Rights Agreement, will not be, registered under the Securities Act pursuant to Section 4(2) thereof, or any state securities Laws and are being offered and sold in reliance upon exemptions from the registration requirements of the Securities Act and (ii) there is no existing public the Units purchased hereunder may not be transferred or resold except as permitted under the Securities Act and applicable state securities Laws pursuant to registration or exemption from registration requirements thereunder; provided, however, that by making such representations herein, such Purchaser does not agree to hold any of the Units for any minimum or other market specific term and reserves the right to dispose of the Units at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. Further, such Purchaser is aware and agrees that the offer and sale of the Shares to it do not require the publication of a securities prospectus under the Prospectus Regulation and that such securities prospectus has not been, and will not be, filed for approval with the New Notescompetent authority nor published in any Member State and are being offered and sold in reliance upon exemptions from the securities prospectus requirements under the Prospectus Regulation.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) Purchaser is an "“accredited investor," as such term is defined in ” within the meaning of Rule 501(a) 501 of Regulation D promulgated under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired Purchaser understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the certificates evidencing the Securities will bear a legend or other restriction substantially to the following effect (it being agreed that if the Shares or for accounts over which it exercises investment authorityWarrant Shares are not certificated, other appropriate restrictions shall be implemented or notated to give effect to the following): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR THE SECURITIES LAWS OF ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
Purchaser: (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Units; and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) Such Purchaser: (i) has conducted its own investigation of the Company and the Units; (ii) has had access to the Company’s public filings with the SEC, including the SEC Reports, and to such financial and other information as it deems necessary in connection with its decision to purchase the Units; and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations, and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deems necessary in connection with its decision to purchase the Units. Each Purchaser further acknowledges that it has had the opportunity to consult with its own counsel, financial, tax, and other professional advisers as it believes is sufficient for purposes of its purchase of the Units. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 hereof or the right of each Purchaser to rely thereon.
(f) Such Purchaser understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements, and agreements.
(g) Except for the representations and warranties contained in Section 2 hereof, each Purchaser acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Purchaser has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in the New Notes Subsidiaries or with respect to protect its own interest any other information provided to such Purchaser in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Scientific Industries Inc)
Private Placement. (a) Such Person The Company understands and acknowledges that (i) the issuance of the additional New Notes shares of Plug Power Common Stock pursuant to Section 2.2(b) hereof is intended to this Agreement will not be exempt from registration registered under the Securities Act pursuant and will be issued to Section 4(2) thereofthe Company or Cummins, and (ii) there is no existing public or other market for as the New Notes.
(b) Such Person (i) is Company’s assignee, in a "qualified institutional buyer," as such term is defined private placement transaction effected in Rule 144A under reliance on an exemption from the registration requirements of the Securities Act or (ii) is an "accredited investor," as such term is defined and in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt reliance on exemptions from the registration or qualification requirements of applicable state securities or “blue sky” laws. The Company acknowledges that the shares of Plug Power Common Stock so issued to the Company or Cummins, as the Company’s assignee, will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act. The Company represents and acknowledges that it, is familiar with Rule 144 under the Securities Act as presently in effect and understands the restrictions and resale limitations imposed thereby and by the Securities Act.
(b) The Company understands and agrees that such shares of Plug Power Common Stock cannot be offered, resold or otherwise transferred except pursuant to (a) an effective registration statement under the Securities Act covering such offer, sale or transfer and such offer, sale or transfer is made in accordance with such registration statement, or (b) an available exemption from registration. The Company hereby covenants and agrees that it will not offer, sell or otherwise transfer any such shares of Plug Power Common Stock except in compliance with the terms of this Agreement and with applicable federal and state securities and “blue sky” laws.
(c) The certificates representing shares of Plug Power Common Stock issued pursuant to this Agreement shall bear, in addition to any other legends required under applicable state securities or “blue sky” laws, a legend in substantially the following form: These securities have not been registered under the Securities Act, or under any applicable state securities or “blue sky” laws. These securities may not be sold, offered, pledged, hypothecated or otherwise transferred except pursuant to registration under the Securities Act or pursuant to an available exemption from registration. The issuer of these securities may require an opinion of counsel reasonably satisfactory to the issuer, in form and substance reasonably satisfactory to the issuer, to the effect that any sale or transfer of these securities will be in compliance with the Securities Act and any applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification“blue sky” laws.
(ed) Such Person (A) has Plug Power will not be required to transfer on its books any shares of Plug Power Common Stock that have been furnished with sold or has had full access to all transferred in violation of any provision of applicable law or the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management terms of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentthis Agreement.
Appears in 1 contract
Private Placement. (a) Such Person understands that The Optionee is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Option to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act and that the Company is relying in part upon the truth and accuracy of, and the Optionee’s compliance with, the representations, warranties, agreements, acknowledgments and covenants of the Optionee set forth herein in order to determine the availability of such exemptions and the eligibility of the Optionee to acquire the Option and (iii) acquiring the Option for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in a manner that would violate the Securities Act. If the Optionee is acquiring the Option as a fiduciary or agent for one or more accounts, the Optionee represents that it has sole investment discretion with respect to each such account and it has full power to make the representations, acknowledgements, covenants and agreements set forth herein on behalf of such account.
(b) The Optionee understands and agrees that the Option is being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the Option and the Common Shares issuable upon exercise of the Option have not been and will not be registered under the Securities Act and that the Option and the Common Shares issuable upon exercise of the Option may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to Section 4(2an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) thereofpursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States.
(c) The Optionee (i) has such sufficient knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Option and the Common Shares issuable pursuant thereto, and (ii) there is no existing public or other market for has the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under ability to bear the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) economic risks of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofprospective investment.
(d) Such Person The Optionee acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Option, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Option, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its subsidiaries and to ask questions of the Company and receive answers thereto, each as it deemed necessary in connection with the decision to purchase the Option. The Optionee further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Option. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Optionee to rely thereon, or any of the other express terms and conditions of this Agreement.
(e) The Optionee understands that the additional New Notes Company will be issued rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(f) Except for the representations and warranties contained in a transaction exempt from Section 2 of this Agreement, the registration Optionee acknowledges that neither the Company nor any person on behalf of the Company makes, and the Optionee has not relied upon, any other express or qualification implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to the Optionee in connection with the transactions contemplated by this Agreement.
(g) The Optionee understands that upon the original issuance of the Common Shares upon the exercise of the Option, and until such time as the same is no longer required under applicable requirements of the Securities Act and or applicable state securities laws laws, any certificates or other instruments representing such Common Shares, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear customary legends referencing such restrictions on transferability, and that Holding's reliance the Company will make a notation on its records and give instructions to any registrar or transfer agent of such exemption is predicated upon Common Shares in order to implement the Lenders' representations contained restrictions on transfer set forth and described herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(eh) Such Person (A) The Optionee understands that no U.S. or foreign government or regulatory authority or agency has been furnished with passed on or has had full access to all made any recommendation or endorsement of the information that it considers necessary Option or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management fairness or suitability of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect Option nor have such authorities passed upon or endorsed the merits of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks offering of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentOption.
Appears in 1 contract
Sources: Option Agreement (FXCM Inc.)
Private Placement. (a) Such Person Holder understands that (i) the issuance Exchange and the delivery of securities in the additional New Notes pursuant to Section 2.2(b) hereof Exchange as contemplated hereby is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for such securities and, except as otherwise provided in the New NotesRelated Agreements, there can be no assurance that such Holder will be able to sell or dispose of the securities delivered to such Holder pursuant to the terms hereof.
(b) Such Person The securities to be acquired by such Holder pursuant to this Agreement are being acquired for its own account for investment and without a view to the public distribution of such securities or any interest therein.
(ic) Unless Industries has been notified in writing to the contrary prior to September 4, 1996, such Holder is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(cd) Such Person is acquiring Holder has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the additional New Notes merits and risks of its investment in the securities to be acquired by such Holder pursuant to Section 2.2(b) hereof for this Agreement and such Holder is capable of bearing the economic risks of such investment, including a complete loss of its own account (or for accounts over which it exercises investment authority)in such securities, for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that since such securities must may not be held indefinitely unless a subsequent disposition thereof is registered or qualified under transferred except as provided in the Securities Act and such laws or is exempt from such registration or qualificationRelated Agreements.
(e) Such Person (A) Holder has been furnished with or has had full access to all given the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding ask questions of, and receive answers from the intended business Ingram Companies concerning the Ingram Companies, the securities to be acquired by such Holder pursuant to this Agreement, the transactions contemplated hereby and financial affairs of Holding by the Reorganization Agreement and other related matters. Such Holder further represents and warrants to obtain each Ingram Company that such Ingram Company has made available to ▇▇▇▇ Holder or its agent▇ ▇▇▇ documents and information (relating to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in such securities requested by or on behalf of such Holder. In evaluating the New Notes indefinitely suitability of an investment in such securities, such Holder has not relied upon any other representations or other information (whether oral or written) made by or on behalf of any Ingram Company.
(f) Such Holder understands ▇▇▇▇ (i) the securities to be acquired by such Holder pursuant to this Agreement may not be transferred except in compliance with the provisions of the Related Agreements and (yii) such securities will bear a total loss in respect of legend to such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmenteffect.
Appears in 1 contract
Private Placement. (a) The Units to be acquired by such Purchaser hereunder will be acquired for such Purchaser’s own account and not with a view to the resale or distribution of any part thereof. Such Person understands Purchaser is aware that (i) the issuance offer and sale of the additional New Notes pursuant Units to Section 2.2(b) hereof is intended to be exempt from registration it have not been, and, except as contemplated by the Registration Rights Agreement, will not be, registered under the Securities Act pursuant to Section 4(2) thereof, or any state securities Laws and are being offered and sold in reliance upon exemptions from the registration requirements of the Securities Act and (ii) there is no existing public the Units purchased hereunder may not be transferred or resold except as permitted under the Securities Act and applicable state securities Laws pursuant to registration or exemption from registration requirements thereunder; provided, however, that by making such representations herein, such Purchaser does not agree to hold any of the Units for any minimum or other market for specific term and reserves the New Notesright to dispose of the Units at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) Purchaser is an "“accredited investor," as such term is defined in ” within the meaning of Rule 501(a) 501 of Regulation D promulgated under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired Purchaser understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the certificates evidencing the Securities will bear a legend or other restriction substantially to the following effect (it being agreed that if the Shares or for accounts over which it exercises investment authorityWarrant Shares are not certificated, other appropriate restrictions shall be implemented or notated to give effect to the following): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR THE SECURITIES LAWS OF ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
Purchaser: (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Units; and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) Such Purchaser: (i) has conducted its own investigation of the Company and the Units; (ii) has had access to the Company’s public filings with the SEC, including the SEC Reports, and to such financial and other information as it deems necessary in connection with its decision to purchase the Units; and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations, and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deems necessary in connection with its decision to purchase the Units. Each Purchaser further acknowledges that it has had the opportunity to consult with its own counsel, financial, tax, and other professional advisers as it believes is sufficient for purposes of its purchase of the Units. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 hereof or the right of each Purchaser to rely thereon.
(f) Such Purchaser understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements, and agreements.
(g) Except for the representations and warranties contained in Section 2 hereof, each Purchaser acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Purchaser has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in the New Notes Subsidiaries or with respect to protect its own interest any other information provided to such Purchaser in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Scientific Industries Inc)
Private Placement. (a) Such Person The Purchaser understands that and acknowledges that:
(i) the issuance Inland Series C Preferred Shares have not been, and will not be, registered under the Securities Act and the Inland Series C Preferred Shares must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement;
(ii) the offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Inland Series C Preferred Shares are intended to be exempt from registration under the Securities Act pursuant to by virtue of the provisions of Section 4(2) thereof, and of the Securities Act. The Purchaser understands that the certificate(s) evidencing the Inland Series C Preferred Shares will be imprinted with a legend that prohibits the transfer thereof unless they are registered or such registration is not required; and
(iiiii) there is no existing public or other market for the New NotesInland Series C Preferred Shares and there can be no assurance that the Purchaser will be able to sell or dispose of the Inland Series C Preferred Shares.
(b) Such Person The Purchaser represents and warrants to the Company that:
(i) the Inland Series C Preferred Shares to be acquired by it pursuant to this Agreement are being acquired for its own account not as a nominee or agent for any other Person and without a view to the distribution of such Inland Series C Preferred Shares or any interest therein in violation of the Securities Act;
(ii) the Purchaser is a "qualified institutional buyer," an “Accredited Investor” as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with Inland Series C Preferred Shares and the Purchaser is capable of bearing the economic risks of such investment; and
(iii) the Purchaser, subject to the completeness and accuracy of the representations and warranties contained herein and in the Related Agreements, has been provided, to its satisfaction, the opportunity to ask questions concerning the terms and conditions of the offering and sale of the Purchased Shares and has had all such questions answered to its satisfaction and has been supplied all additional information deemed necessary by it to verify the accuracy of the information furnished to it.
Appears in 1 contract
Sources: Series C Preferred Stock Subscription Agreement (Inland Western Retail Real Estate Trust Inc)
Private Placement. (a) Such Person The Purchaser understands that and acknowledges that:
(i) the issuance Purchased Shares have not been, and will not be, registered under the Securities Act and the Purchased Shares and the shares of Common Stock into which the Purchased Shares are convertible must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement;
(ii) the offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof is Purchased Shares are intended to be exempt from registration under the Securities Act pursuant to by virtue of the provisions of Section 4(2) thereof, and of the Securities Act. The Purchaser understands that the certificate(s) evidencing the Purchased Shares will be imprinted with a legend that prohibits the transfer thereof unless they are registered or such registration is not required; and
(iiiii) there is no existing public or other market for the New NotesPurchased Shares and there can be no assurance that the Purchaser will be able to sell or dispose of the Purchased Shares.
(b) Such Person The Purchaser represents and warrants to the Company that:
(i) the Purchased Shares to be acquired by it pursuant to this Agreement are being acquired for its own account not as a nominee or agent for any other Person and without a view to the distribution of such Purchased Shares or any interest therein in violation of the Securities Act;
(ii) the Purchaser is a "qualified institutional buyer," an “Accredited Investor” as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with Purchased Shares and the Purchaser is capable of bearing the economic risks of such investment; and
(iii) the Purchaser, subject to the completeness and accuracy of the representations and warranties contained herein and in the Related Agreements, has been provided, to its satisfaction, the opportunity to ask questions concerning the terms and conditions of the offering and sale of the Purchased Shares and has had all such questions answered to its satisfaction and has been supplied all additional information deemed necessary by it to verify the accuracy of the information furnished to it.
Appears in 1 contract
Sources: Securities Purchase and Subscription Agreement (Inland American Real Estate Trust, Inc.)
Private Placement. (a) Such Person understands that (i) The Investor understands that the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Common Shares is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(cii) Such Person The Investor is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Common Shares for its investment for Investor’s own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofof such Common Shares or any interest therein other than in a transaction that is registered or exempt from registration under the Securities Act.
(diii) Such Person The Investor is an “accredited investor” as such term is defined in Regulation D under the Securities Act.
(iv) The Investor (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Common Shares, and is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Common Shares acquired by it hereunder.
(v) The Investor has been given the opportunity to ask questions of, and receive answers from, the Company regarding the Company, the terms and conditions of the Common Shares and related matters, and has been furnished with the information it deems necessary or desirable to evaluate the merits and risks of its acquisition of the Common Shares. The Investor has relied solely upon its own investigation and the express representations and warranties of the Company set forth in Section 3 of this Agreement. The foregoing, however, does not limit or modify the representations and warranties made by the Company in this Agreement or any other provision in this Agreement or the right of the Investor to rely thereon.
(vi) The Investor understands that the additional New Notes will be issued Common Shares it is acquiring are characterized as “restricted securities” under the Securities Act in as much as they are being acquired from the Company in a transaction exempt from the registration or qualification requirements of not involving a public offering and that under the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionregulations, such Person understands that such securities must Common Shares may be held indefinitely unless a subsequent disposition thereof is registered or qualified resold without registration under the Securities Act and only in certain limited circumstances. Investor understands that the certificates evidencing the Common Shares will bear a restrictive legend substantially as follows until such laws or is exempt from time as such registration or qualificationlegend shall be removed as provided in Section 5(b) below: THE SECURITIES REFERENCED HEREIN HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
(evii) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesThe Investor has, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentits decision to acquire the Common Shares, relied solely upon the SEC Reports and the representations and warranties of the Company contained in this Agreement.
Appears in 1 contract
Private Placement. (a) Such Person Purchaser understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities in the Transactions by the Company is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, thereof and (ii) there is no existing public or other market for the New NotesSecurities.
(b) Such Person Purchaser (ieither alone or together with its advisors) is a "qualified institutional buyer," has sufficient knowledge and experience in financial and business matters so as such term is defined to be capable of evaluating the merits and risks of its investment in Rule 144A under the Securities Act or (ii) and is an "accredited investor," as capable of bearing the economic risks of such term is defined in Rule 501(a) of Regulation D under the Securities Actinvestment.
(c) Such Person Purchaser is acquiring the additional New Notes Securities to be acquired pursuant to Section 2.2(bhereunder (and will acquire the Warrant Shares) hereof for its own account (or for accounts over which it exercises investment authority)account, for investment and not with a view to the public resale or distribution thereof, in violation of any securities law.
(d) Such Person Purchaser understands that the additional New Notes Securities will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws laws, and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person Purchaser (A) has been furnished with or has had full access to all of the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesSecurities and that it has requested from the Company, (B) has had an opportunity to discuss with management of Holding the Company the intended business and financial affairs of Holding the Company and to obtain information (to the extent Holding the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, access and (C) can bear the economic risk of (x) an investment in the New Notes Securities indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes Securities and to protect its own interest in connection with such investment; it being understood that nothing set forth in this Section 4.2(e) shall affect the representations, warranties or other obligations of the Company, or the rights and remedies of such Purchaser, under this Agreement in any way whatsoever.
Appears in 1 contract
Private Placement. (a) Such Person The Investor understands that that: (i) the issuance purchase of the additional New Notes pursuant to Section 2.2(bSubscribed Shares involves a high degree of risk, an investment in the Company is highly speculative and the Investor could sustain the loss of its entire investment; (ii) hereof is the offering and sale of the Common Stock hereunder are intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereofof the Securities Act; (iii) the Subscribed Shares have not been registered under the Securities Act or any state or foreign securities laws, and may not be offered, sold or transferred by the Investor unless registered under the Securities Act and applicable state and foreign securities laws, or an exemption from such registration is available; and (iiiv) there is can be no existing public assurance that such Investor will be able to sell or other market for dispose of the New NotesCommon Stock.
(b) Such Person The Investor hereby confirms to the Company that: (i) the Subscribed Shares are being acquired for the Investor's own account, for investment and without a view to the distribution or resale thereof or any interest therein to others; (ii) the Investor is a an "qualified institutional buyer,accredited investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," Regulation D, as such term is defined in Rule 501(a) of Regulation D amended, under the Securities Act.
; (ciii) Such Person is acquiring the additional New Notes Investor has sufficient knowledge and experience in financial and business matters so as to be acquired pursuant to Section 2.2(b) hereof for capable of evaluating the merits and risks of its own account (or for accounts over which it exercises investment authority)in Subscribed Shares, for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements is capable of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear bearing the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect risks of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks including a complete loss of and form an investment decision with respect to its investment in the New Notes Subscribed Shares; (iv) the Investor has been furnished by the Company with all information regarding the Company which it had requested or desired to protect know; that all documents which could be reasonably provided have been made available for its own interest inspection and review; that it has been afforded the opportunity to ask questions of and receive answers from duly authorized officers or other representatives of the Company concerning the terms and conditions of the offering, the use of proceeds from this offering and any additional information which it had requested; and (v) except as set forth in connection with such investmentthis Agreement, the SEC Reports and the Company Disclosure Schedule, no representations or warranties have been made to the Investor by the Company or any agent, employee or affiliate of the Company and in entering into this transaction, the Investor is not relying on any information, other than that contained in this Agreement, the SEC Reports and the Company Disclosure Schedule and the results of independent investigation by the Investor.
Appears in 1 contract
Sources: Subscription Agreement (Dme Interactive Holdings Inc)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Preferred Stock and Warrants (collectively, including the Common Stock issuable upon conversion of the Preferred Stock and exercise of Warrants, the “Securities”) to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person (i) is Investor understands and agrees that the Securities are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as such term is defined in Rule 144A contemplated by the Investor Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States and Section 9 of this Agreement, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) Such Person is acquiring the additional New Notes to be acquired Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or, to the reasonable satisfaction of the Company, in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofOR AS MAY BE HELD BY A PERSON DEEMED AN “AFFILIATE” (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE ISSUER OF THIS SECURITY, AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE CERTIFICATE OF DESIGNATION OF SERIES [] CONVERTIBLE PREFERRED STOCK OF USEC INC. (THE “COMPANY”), AS AMENDED. THIS SECURITY IS SUBJECT TO THE RESTRICTIONS (INCLUDING THE VOTING AND TRANSFER RESTRICTIONS) SET FORTH IN ARTICLES FOURTH AND ELEVENTH OF USEC INC.’S CERTIFICATE OF INCORPORATION, AS AMENDED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE OBLIGATIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER, CONVERSION AND REDEMPTION) STATED IN, AND ARE TRANSFERABLE ONLY IN ACCORDANCE WITH, THE PROVISIONS OF SECTION 9 OF THE SECURITIES PURCHASE AGREEMENT BY AND AMONG THE COMPANY, TOSHIBA CORPORATION (“TOSHIBA”) AND ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ INVESTMENT COMPANY (“B&W”), DATED AS OF MAY 25, 2010. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE OBLIGATIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON THE DISPOSITION OF SECURITIES) STATED IN THE PROVISIONS OF SECTION 4.7 OF THE INVESTOR RIGHTS AGREEMENT BY AND AMONG THE COMPANY, TOSHIBA AND B&W, DATED AS OF , 2010.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.Investor:
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and
(ii) has the ability to bear the economic risks of its prospective investment and form an investment can afford the complete loss of such investment.
(e) Such Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Securities, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. Each Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement, the right of the Investors to rely thereon or any rights or remedies available to the Investors in this Agreement, the other Transaction Documents or otherwise.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 2 of this Agreement or in any other Transaction Document, each Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investors in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Babcock & Wilcox Co)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes Preferred Shares, the Common Stock issuable upon conversion of the Series A Preferred being issued and sold pursuant to Section 2.2(bthis Agreement, and the Warrant issued pursuant to the Warrant Agreement (collectively, the “Securities”) hereof is intended to be exempt it are being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of the Company Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY COMPANY SUBSIDIARY, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE INVESTOR RIGHTS AGREEMENT, DATED AS OF [●], 2015, AMONG ACCRETIVE HEALTH, INC. AND THE INVESTOR NAMED THEREIN.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption The Investor: (i) is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and Transactions; (y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and the Company Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the SEC Reports), such Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to its investment in the New Notes Company or any Company Subsidiaries or with respect to protect its own interest any other information provided to the Investor in connection with such investmentthe Transactions.
Appears in 1 contract
Sources: Securities Purchase Agreement (Accretive Health, Inc.)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes Preferred Shares and the Common Stock issuable upon conversion of the Series A Preferred Stock being issued and sold pursuant to Section 2.2(b) hereof is intended this Agreement and to be exempt issued in exchange for the Series B Preferred issued and sold pursuant to this Agreement (collectively, the “Securities”) to it is being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person The Investor understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired The Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE INVESTOR RIGHTS AGREEMENT, DATED AS OF JUNE 23, 2009, AMONG OFFICE DEPOT, INC., BC PARTNERS, INC. AND THE INVESTORS NAMED THEREIN.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption The Investor: (i) is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated by this Agreement; (y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and form an (iii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the SEC Reports), the Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investors in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Shares for the New Notesits own account.
(b) Such Person Investor understands and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been and, except as contemplated in this Agreement, will not be registered under the Securities Act and that such Shares may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities Laws of any State of the United States, and that it will notify any subsequent purchaser of Shares from it of the resale restrictions referred to above, as such term is defined in Rule 144A applicable.
(c) Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Shares will bear a legend or other restriction substantially to the following effect (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under it being agreed that if the Securities Act.
Shares are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authorityTHE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF SUCH SECURITIES AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF SUCH SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. SUCH SECURITIES MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF MAY 22, 2016.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration Investor, either alone or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additiontogether with its Representatives, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge knowledge, sophistication and experience in business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of the prospective investment in the Shares, and form an has so evaluated the merits and risks of such investment. Investor understands that Investor must bear the economic risk of this investment in the Shares indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment.
(e) Investor acknowledges that Investor and/or its Representatives (i) have conducted its own investigation of the Company and the terms of the Shares, (ii) have had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Shares, and (iii) have been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as deemed necessary in connection with the decision to purchase the Shares. Investor further acknowledges that it has had such opportunity to consult with their own counsel, financial and tax advisors and other professional advisers as is sufficient for purposes of the purchase of the Shares.
(f) Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 3 of this Agreement, Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and Investor has not relied upon, any other express or implied representation or warranty with respect to (i) the Company or any of its investment in the New Notes Subsidiaries or (ii) any other information provided to protect Investor or any of its own interest Representatives in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tribune Publishing Co)
Private Placement. (a) Such Person understands that Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Shares (collectively, including the Common Stock issuable upon conversion of the Shares, the “Securities”) to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Securities for the New Notesits own account.
(b) Such Person (i) is Investor understands and agrees that the Securities are being offered in a "qualified institutional buyer," transaction not involving any public offering within the meaning of the Securities Act, that such Securities have not been and, except as such term is defined in Rule 144A contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Securities may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) is pursuant to an "accredited investor," as such term is defined in exemption from registration under the Securities Act provided by Rule 501(a144 thereunder (if available), (iii) of Regulation D pursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(c) Such Person is acquiring the additional New Notes to be acquired Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE “SECURITIES ACT”), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THIS SECURITY MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THE SECURITIES PURCHASE AGREEMENT, DATED AS OF NOVEMBER 5, 2008, AMONG WHOLE FOODS MARKET, INC., GREEN EQUITY INVESTORS V, L.P. AND THE OTHER INVESTORS IDENTIFIED THEREIN.”
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.Investor:
(ei) Such Person (A) has been furnished with or has had full access is able to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment fend for itself in the New Notes indefinitely and transactions contemplated hereby;
(y) a total loss in respect of such investment, and (Dii) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Securities; and
(iii) has the ability to bear the economic risks of its prospective investment and form an investment can afford the complete loss of such investment.
(e) Such Investor acknowledges that (a) it has conducted its own investigation of the Company and the terms of the Securities, (b) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Securities, and (c) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities. Each Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Except for the representations and warranties contained in Section 2 of this Agreement, each Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Investor has not relied upon, any other express or implied representation or warranty with respect to the Company or any of its investment in Subsidiaries or with respect to any other information provided to the New Notes to protect its own interest Investors in connection with such investmentthe transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Whole Foods Market Inc)
Private Placement. (a) Such Person It understands that (i) the issuance offering and sale of the additional New Notes pursuant to Section 2.2(b) hereof Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, of the Securities Act and (ii) there is no existing public or other market for any of the New NotesSecurities and there can be no assurance that it will be able to sell or dispose of such Securities purchased by it pursuant to this Agreement.
(b) Such Person (i) It is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A Regulation D.
(c) It has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Securities and it is capable of bearing the economic risks of such investment, including a complete loss of its investment in the Securities.
(d) It has had access to the management and records of the Issuer and has been furnished with all the information that it has requested from the Issuer for determining whether to purchase the Securities and has been given the opportunity to ask questions of, and receive answers from, management of the Issuer regarding its business and affairs and concerning the terms and conditions of the Securities and other related matters.
(e) It understands that the Securities and the shares of Common Stock issuable upon exercise of the Warrants are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Issuer in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act or (ii) only in certain limited circumstances. In this connection, it represents that it is an "accredited investor," familiar with SEC Rules 144 and 144A, as such term is defined presently in Rule 501(a) of Regulation D under effect, and understands the resale limitations imposed thereby and by the Securities Act.
(cf) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view In addition to the resale restrictions on transfer imposed by federal or distribution thereof.
(d) Such Person understands state securities laws, Lucent hereby covenants and agrees with the Issuer that the additional New Notes it will be issued in a transaction exempt from the registration not transfer, sell, assign or qualification requirements pledge all or any part of the Securities Act purchased by it hereunder until the earlier of (i) one year after the date of any future issuance and applicable state sale by the Issuer of any high yield debt securities laws and that Holding's reliance on such exemption is predicated upon yielding gross proceeds to the Lenders' representations contained hereinIssuer of at least $50,000,000 or (ii) August 4, 2000. In additionNotwithstanding the foregoing, such Person understands that such securities must the Series F Preferred Stock may be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
by an Affiliate (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment as defined in the New Notes indefinitely and (y"Certificate of Designations") a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to Lucent that is under its investment in the New Notes to protect its own interest in connection with such investmentcontrol.
Appears in 1 contract
Sources: Securities Purchase Agreement (KMC Telecom Holdings Inc)
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act by virtue of paragraph (a)(8) thereof; (ii) aware that the sale of the additional New Notes Series A Preferred Stock and the Common Stock issuable upon conversion of the Series A Preferred Stock being issued and sold pursuant to Section 2.2(bthis Agreement (collectively, the “Securities”) hereof is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and applicable state securities Laws and (iiiii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under acquiring the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (account, not as a nominee or for accounts over which it exercises investment authority)agent, for investment and not with a view to the resale or distribution of any part thereof, and that such Investor has no present intention of selling, granting any participation in or otherwise distributing the same in any manner that violates the Securities Act.
(db) Such Person The Investor understands and agrees that the additional New Notes will be issued Securities are being offered in a transaction exempt from not involving any public offering within the registration or qualification requirements meaning of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionAct, such Person understands that such securities must Securities have not been and will not be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and that such laws Securities may be offered, resold, pledged or is exempt otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to an exemption from such registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or qualification(iv) to the Company or one of its Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities Laws, and that it will notify any subsequent purchaser of Securities from it of the resale restrictions referred to above, as applicable.
(ec) Such Person The Investor understands that, unless sold pursuant to a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Securities will bear a legend or other restriction substantially to the following effect (it being agreed that if the Securities are not certificated, other appropriate restrictions shall be implemented to give effect to the following): “THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New NotesTHIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (to the extent Holding possessed such information or could acquire it without unreasonable effort or expenseA) necessary to verify any information furnished to it or to which it had access, ABOVE.”
(Cd) can bear the economic risk of The Investor: (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of and form an investment decision with respect to its prospective investment in the New Notes Securities and (ii) has the ability to protect bear the economic risks of its prospective investment and can afford the complete loss of such investment. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties, provided that the Investor acknowledges and agrees that, other than the representations and warranties in Section 4 of this Agreement, there are no other representations and warranties of the Company either express or implied.
(e) The Investor acknowledges that (i) it has conducted its own interest investigation of the Company and the terms of the Securities, (ii) it has had access to the Company’s public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Securities, (iii) it has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and received answers thereto, each as it deemed necessary in connection with the decision to purchase the Securities and (iv) any projections, estimates or forecasts of future results or events provided by or on behalf of the Company are subject to uncertainty and to the assumptions used in their preparation. The Investor further acknowledges that it has had such investmentopportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Securities. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of the Investor to rely on such representations and warranties, provided that the Investor acknowledges and agrees that, other than the representations and warranties in Section 4 of this Agreement, there are no other representations and warranties of the Company either express or implied.
(f) The Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Appears in 1 contract
Sources: Securities Purchase Agreement (Surgery Partners, Inc.)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended The Preferred Shares and Subordinated Note to be exempt from registration under acquired by Seller at Closing are being acquired for its own account and without a view to the Securities Act pursuant to Section 4(2) thereofpublic distribution of such securities or any interest therein. Seller is and at Closing will be an "Accredited Investor", and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes . Seller has sufficient knowledge and experience in financial and business matters so as to be acquired capable of evaluating the merits and risks of its investment in the Preferred Shares and Subordinated Note and is capable of bearing the economic risks of such investments, including a complete loss thereof. Seller has been furnished with and carefully read a copy of this Agreement, including the Exhibits, and has been given the opportunity to ask questions of and receive answers from Vanguard concerning the terms and conditions of the Preferred Shares, the Subordinated Note and other related matters. Seller acknowledges that Vanguard has made available to Seller or its agents all documents and information relating to an investment in the Preferred Shares and the Subordinated Note requested by or on behalf of Seller, Seller further acknowledges that the Preferred Shares and Subordinated Note will be subject to the restrictions on transfer set forth in the following legends and that the certificates evidencing the Preferred Shares and the Subordinated Note shall contain legends to substantially the following effect: The securities evidenced by this certificate have not been registered under the Securities Act and may not be offered or sold except pursuant to Section 2.2(b) hereof for its own account (an exemption from, or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from not subject to, the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon prior to transfer the Lenders' representations contained herein. In addition, such Person understands transferor shall provide to Buyer an opinion of counsel satisfactory to Buyer that such securities must be held indefinitely unless a subsequent disposition thereof registration is registered or qualified under not required. The office of Seller in which the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Noteswas made is located in San Antonio, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentTexas.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vanguard Health Systems Inc)
Private Placement. (a) Such Person understands that (i) The issuance of Synbiotics Notes, the issuance of shares of Synbiotics Common Stock upon conversion of the additional New Notes pursuant to Section 2.2(bSynbiotics Notes, and the issuance of Contingent Shares (if any) hereof is are intended to be exempt from the registration under requirements of the Securities Act of 1933, as amended (the "Securities Act"), pursuant to the private placement exemption provided by Section 4(2) thereofof the Securities Act, and (ii) there is no existing public or other market of applicable state securities laws. Each Member hereby agrees to take all actions and execute all documents reasonably requested by Synbiotics to qualify the issuance of such securities for the New Notessuch exemptions.
(b) Such Person Any evidence of ownership of the Synbiotics Notes, the shares of Synbiotics Common Stock issuable upon conversion thereof, and the Contingent Shares (iif any) is a (collectively, the "qualified institutional buyer,Securities") shall bear the following legend: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED SATISFACTORY EVIDENCE THAT SUCH REGISTRATION IS NOT REQUIRED." as such term is defined The Securities shall not be transferable in Rule 144A the absence of an effective registration statement under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes exemption therefrom. Synbiotics shall be entitled to be acquired pursuant give stop transfer instructions to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision transfer agent with respect to the New Notes, (B) has had an opportunity Securities in order to discuss with management of Holding enforce the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentforegoing restrictions.
Appears in 1 contract
Sources: Exchange Agreement (Synbiotics Corp)
Private Placement. (a) Such Person understands that Investor is (i) an "accredited investor" within the issuance meaning of Rule 501 of Regulation D promulgated under the Securities Act; (ii) aware that the sale of the additional New Notes pursuant Purchased Shares to Section 2.2(b) hereof is intended to be exempt it are being made in reliance on a private placement exemption from registration under the Securities Act pursuant to Section 4(2) thereof, and (iiiii) there is no existing public or other market acquiring the Purchased Shares for the New Notesits own account.
(b) Such Person Investor understands and agrees that the Purchased Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Purchased Shares have not been and, except as contemplated by the Registration Rights Agreement, will not be registered under the Securities Act and that such Purchased Shares may be offered, resold, pledged or otherwise transferred only (i) is in a "qualified institutional buyer," as such term is defined in transaction not involving a public offering, (ii) pursuant to an exemption from registration under the Securities Act provided by Rule 144A 144 thereunder (if available), (iii) pursuant to an effective registration statement under the Securities Act or (iiiv) is an "accredited investor," to the Company or one of the Company Subsidiaries, in each of cases (i) through (iv) in accordance with any applicable state and federal securities laws, and that it will notify any subsequent purchaser of Purchased Shares from it of the resale restrictions referred to above, as such term is defined in Rule 501(a) of Regulation D under the Securities Actapplicable.
(c) Such Person is acquiring the additional New Notes to be acquired Investor understands that, unless sold pursuant to Section 2.2(b) hereof for its own account a registration statement that has been declared effective under the Securities Act or in compliance with Rule 144 thereunder, the Company may require that the Purchased Shares will bear a legend or other restriction substantially to the following effect (or for accounts over which it exercises investment authoritybeing agreed that if the Purchased Shares are not certificated, other appropriate restrictions shall be implemented to give effect to the following): "THIS SECURITY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT"), for investment and not with a view to the resale or distribution thereofAND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN A TRANSACTION NOT INVOLVING A PUBLIC OFFERING, (II) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY COMPANY SUBSIDIARY, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE."
(d) Such Person understands that the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
Investor (e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect of such investment, and (Di) has such knowledge and experience in financial and business and financial matters so as to enable it to understand be capable of evaluating the merits and evaluate the risks of its prospective investment in the Purchased Shares and form an (ii) has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.
(e) Such Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Purchased Shares and (ii) it has had access to the Company's public filings with the SEC and to such financial and other information as it deems necessary to make its decision to purchase the Purchased Shares, each as it deemed sufficient in connection with the decision to purchase the Purchased Shares. Such Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Purchased Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 4 of this Agreement or the right of such Investor to rely on such representations and warranties.
(f) Such Investor understands that the Company will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(g) Such Investor is a U.S. Person.
(h) Except for the representations and warranties contained in Section 4 of this Agreement (including any references in such Section to the Filed SEC Reports), such Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and such Investor has not relied upon, any other express or implied representation or warranty with respect to its investment in the New Notes Company or any Company Subsidiaries or with respect to protect its own interest any other information provided to such Investor in connection with such investmentthe Transactions.
Appears in 1 contract
Sources: Securities Purchase Agreement (Rimini Street, Inc.)
Private Placement. (a) Such Person Seller understands that (i) the issuance of the additional New Notes pursuant Shares to Section 2.2(b) hereof Seller as part of the Purchase Price is intended to be exempt from registration under the Securities Act of 1993, as amended (the "Securities Act") pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for of the New NotesSecurities Act.
(b) Such Person The Shares acquired by Seller pursuant to this Agreement are being acquired for its own account and without a view to the resale or distribution except as provided in Section 7.1.10(e).
(ic) Seller is a an "qualified institutional buyer,Accredited Investor" as such term is defined in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof.
(d) Such Person understands Seller has been furnished with and carefully read Buyer's Exchange Act Filings filed since Buyer's initial public offering on April 21, 1995 and has been given the opportunity to ask questions of, and receive answers from, Buyer's management concerning the Shares, Buyer's business and other related matters. Seller further represents and warrants to Buyer that Buyer has made available to Seller or its agents all documents and information relating to an investment in the additional New Notes will be issued in a transaction exempt from the registration Shares requested by or qualification requirements on behalf of the Securities Act and applicable state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualificationSeller.
(e) Such Person Seller agrees that the Shares may be resold or otherwise transferred only, (Ai) has been furnished with or has had full access inside the United States to all a "qualified institutional buyer" (as defined in Rule 144A under the information that it considers necessary or appropriate Securities Act) in a transaction meeting the requirements of Rule 144A, (ii) to make an informed investment decision with respect Accredited Investor who, prior to such transfer, furnishes to Seller a signed letter to the New Noteseffect of this paragraph, (Biii) has had an opportunity to discuss with management outside the United States in a transaction meeting the requirements of Holding Rule 904 under the intended business and financial affairs of Holding and to obtain information Securities Act, (iv) pursuant to the extent Holding possessed exemption from registration provided by Rule 144 under the Securities Act, (v) other valid exemptions under the Securities Act, or (vi) pursuant to a registration statement declared effective under the Securities Act. Seller agrees that, in the case of any resale or other transfer pursuant to clauses (i) through (iv) of the preceding sentence, it will furnish to Buyer or its transfer agent such certifications, legal opinions or other information as it may reasonably require to confirm that such resale or could acquire it without unreasonable effort other transfer is being made pursuant to an exemption from, or expensein a transaction not subject to, the registration requirements of the Securities Act.
(f) necessary Each certificate for the Shares issued to verify any information furnished to it Seller or to which it had access, a subsequent transferee shall (Cexcept for any transferee pursuant to clauses (iv) can bear the economic risk of (x) an investment in the New Notes indefinitely and (yvi) of the first sentence of Section 7.1.10(e)) bear a total loss legend in respect of substantially the following form: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION AND MAY NOT BE OFFERED OR SOLD WITHOUT COMPLIANCE WITH APPLICABLE FEDERAL, STATE OR FOREIGN SECURITIES LAWS. PROVIDED, however, that Buyer shall remove such investment, and (Dlegend at such time that Seller becomes eligible to transfer the Shares under Rule 144(k) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate under the risks of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentSecurities Act.
Appears in 1 contract
Sources: Asset Purchase Agreement (Peoples Telephone Company Inc)
Private Placement. (a) Such Person understands that (i) the issuance of the additional New Notes pursuant to Section 2.2(b) hereof is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof, and (ii) there is no existing public or other market for the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under the Securities Act or (ii) It is an "accredited investor," as such term is defined in Rule 501(a) within the meaning of NI 45-106 and Regulation D under the U.S. Securities Act.
(c) Such Person Act and is acquiring purchasing its Proportionate Share of the additional New Notes to be acquired pursuant to Section 2.2(b) hereof Purchased Preferred Shares as principal, solely for its own account (or for accounts over which it exercises investment authority), for investment purposes and not with a view to the resale to, or for offer or sale in connection with, any distribution thereof.thereof . It represents that:
(di) Such Person it understands that the additional New Notes will be issued in Purchased Preferred Shares and the Exchange Common Shares are being offered on a transaction "private placement" basis exempt from registration under Securities Laws, and, therefore, may not be transferred or sold in the United States except pursuant to the registration or qualification requirements provisions of the U.S. Securities Act or pursuant to an applicable exemption therefrom and applicable subject to state securities laws and that Holding's reliance on such exemption is predicated upon the Lenders' representations contained herein. In additionregulations, such Person as applicable;
(ii) it understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered no Securities Regulator has reviewed or qualified under passed on the Securities Act and such laws merits of the Purchased Preferred Shares or is exempt from such registration or qualification.the Exchange Common Shares;
(eiii) Such Person it understands that there is no government or other insurance covering the Purchased Preferred Shares or the Exchange Common Shares;
(Aiv) has been furnished it understands that there are risks associated with or has had full access the purchase of the Purchased Preferred Shares and the Exchange Common Shares; and
(v) it understands that there are restrictions on its ability to all resell the information that Purchased Preferred Shares and the Exchange Common Shares under applicable Laws, it considers necessary or appropriate is its own responsibility to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management of Holding the intended business and financial affairs of Holding find out what those restrictions are and to obtain information (to comply with them before selling the extent Holding possessed such information Purchased Preferred Shares or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had accessthe Exchange Common Shares and, (C) can bear the economic risk of (x) an investment except as otherwise set out in the New Notes indefinitely and (y) a total loss Transaction Agreements, neither the Parent nor the Issuer has agreed to take any action to facilitate such resale in respect of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of and form an investment decision accordance with respect to its investment in the New Notes to protect its own interest in connection with such investmentapplicable Laws.
Appears in 1 contract
Private Placement. (a) Such Person Key Stockholder understands that and is aware that, if any Parent Common Stock to be issued to such Key Stockholder in the Merger is issued in reliance on the exemption from registration set forth in Section 4(2) of the Securities Act or in Regulation D promulgated under the Securities Act,:
(i) any Parent Common Stock to be issued to such Key Stockholder in the Merger will not be issued pursuant to a registration statement under the Securities Act, but will instead be issued in reliance on the exemption from registration set forth in Section 4(2) of the Securities Act or in Regulation D promulgated under the Securities Act;
(ii) neither the Merger nor the issuance of such Parent Common Stock has been or will be approved or reviewed by the additional New Notes pursuant to Section 2.2(bSEC or by any other Governmental Body;
(iii) hereof is intended any Parent Common Stock to be exempt from registration issued in the Merger cannot be offered, sold or otherwise transferred, assigned, pledged or hypothecated unless such Parent Common Stock is registered under the Securities Act or unless an exemption from registration is available;
(iv) Parent is under no obligation to file a registration statement with respect to any Parent Common Stock to be issued to such Key Stockholder in the Merger;
(v) the provisions of Rule 144 under the Securities Act will permit resale of any Parent Common Stock to be issued to such Key Stockholder in the Merger only under limited circumstances, and such Parent Common Stock must be held by such Key Stockholder for at least one year before it can be sold pursuant to Section 4(2Rule 144;
(vi) thereofstop transfer instructions will be given to Parent’s transfer agent with respect to any Parent Common Stock to be issued to such Key Stockholder in the Merger, and there will be placed on the certificate or certificates representing such Parent Common Stock a legend identical or similar in effect to the following legend (iitogether with any other legend or legends required by applicable state securities laws or otherwise): “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) there is no existing public or other market AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.”; and
(vii) Parent will rely on such Key Stockholder’s representations, warranties and certification set forth in this Section 3.6 for purposes of determining such Key Stockholder’s suitability as an investor in Parent Common Stock and for purposes of confirming the availability of an exemption from the registration requirements of the Securities Act for the New Notesissuance of shares of Parent Common Stock in the Merger.
(b) Such Person (i) is Any Parent Common Stock to be issued to such Key Stockholder in the Merger will be acquired by such Key Stockholder for investment purposes only and for such Key Stockholder’s own account, and not with a "qualified institutional buyer," as such term is defined view to, or for resale in Rule 144A under the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Actconnection with, any unregistered distribution thereof.
(c) Such Person is acquiring Key Stockholder has received and carefully examined Parent’s most recent Annual Report on Form 10-K (the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority“Form 10-K”), for investment Quarterly Report on Form 10-Q (the “Form 10-Q”) and not with a view proxy statement, and has paid particular attention to the resale or distribution thereof.risk factors described in the Form 10-K and Form 10-Q.
(d) Such Person understands that Key Stockholder has been given the additional New Notes will be issued in a transaction exempt from the registration or qualification requirements opportunity: (i) to ask questions of, and to receive answers from, Persons acting on behalf of the Securities Act Company and applicable state securities laws Parent concerning the terms and that Holding's reliance on such exemption is predicated upon conditions of the Lenders' representations contained herein. In additionMerger and the possible issuance of Parent Common Stock in the Merger, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under and the Securities Act and such laws or is exempt from such registration or qualification.
(e) Such Person (A) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the New Notesbusiness, (B) has had an opportunity to discuss with management of Holding the intended business properties, prospects and financial affairs condition of Holding the Company and Parent; and (ii) to obtain any additional information (to the extent Holding possessed the Company or Parent possesses such information or could is able to acquire it without unreasonable effort or expense) that is necessary to verify any the accuracy of the information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment set forth in the New Notes indefinitely documents provided or made available to such Key Stockholder.
(e) Such Key Stockholder is knowledgeable, sophisticated and (y) a total loss experienced in respect of such investmentmaking, and (D) has such knowledge and experience in business and financial matters so as is qualified to enable it to understand and evaluate the risks of and form an investment decision make, decisions with respect to its investments in securities presenting investment decisions like that involved in such Key Stockholder’s possible investment in any Parent Common Stock to be issued in the New Notes to protect its own interest Merger.
(f) Such Key Stockholder is an “accredited investor,” as that term is defined in connection with such investmentRule 501 under the Securities Act.
Appears in 1 contract
Private Placement. (a) Such Person understands that The Investor is (i) an “accredited investor” within the issuance meaning of Rule 501 of Regulation D promulgated under the additional New Notes pursuant Securities Act; (ii) aware that the sale of Shares to Section 2.2(b) hereof it is intended to be exempt being made in reliance on a private placement exemption from registration under the Securities Act and that the Company is relying in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and covenants of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Shares and (iii) acquiring Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in a manner that would violate the Securities Act. If the Investor is acquiring the securities as a fiduciary or agent for one or more accounts, the Investor represents that it has sole investment discretion with respect to each such account and it has full power to make the representations, acknowledgements, covenants and agreements set forth herein on behalf of such account.
(b) The Investor understands and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that such Shares have not been and, except as will be contemplated by the Registration Rights Agreement, as amended by the Registration Rights Agreement Amendment, will not be registered under the Securities Act and that the Shares may be offered, resold, pledged or otherwise transferred only (i) in a transaction not involving a public offering, (ii) pursuant to Section 4(2an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available), (iii) thereofpursuant to an effective registration statement under the Securities Act, or (iv) to the Company or one of its subsidiaries, in each of cases (i) through (iv) in accordance with any applicable securities laws of any State of the United States.
(c) The Investor (i) has such sufficient knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Shares, and (ii) there is no existing public or other market for has the New Notes.
(b) Such Person (i) is a "qualified institutional buyer," as such term is defined in Rule 144A under ability to bear the Securities Act or (ii) is an "accredited investor," as such term is defined in Rule 501(a) economic risks of Regulation D under the Securities Act.
(c) Such Person is acquiring the additional New Notes to be acquired pursuant to Section 2.2(b) hereof for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereofprospective investment.
(d) Such Person The Investor acknowledges that (i) it has conducted its own investigation of the Company and the terms of the Shares, (ii) it has had access to the Company’s public filings with the Commission and to such financial and other information as it deems necessary to make its decision to purchase the Shares, and (iii) has been offered the opportunity to conduct such review and analysis of the business, assets, condition, operations and prospects of the Company and its Subsidiaries and to ask questions of the Company and receive answers thereto, each as it deemed necessary in connection with the decision to purchase the Shares. The Investor further acknowledges that it has had such opportunity to consult with its own counsel, financial and tax advisors and other professional advisers as it believes is sufficient for purposes of the purchase of the Shares. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investor to rely thereon, or any of the other express terms and conditions of this Agreement.
(e) The Investor understands that the additional New Notes Company will be issued rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
(f) Except for the representations and warranties contained in a transaction exempt from Section 2 of this Agreement, the registration Investor acknowledges that neither the Company nor any Person on behalf of the Company makes, and the Investor has not relied upon, any other express or qualification implied representation or warranty with respect to the Company or any of its Subsidiaries or with respect to any other information provided to the Investor in connection with the transactions contemplated by this Agreement.
(g) The Investor understands that upon the original issuance of the Shares, and until such time as the same is no longer required under applicable requirements of the Securities Act and or applicable state securities laws laws, any certificates or other instruments representing the Shares, and all certificates or other instruments issued in exchange therefor or in substitution thereof, shall bear customary legends referencing such restrictions on transferability, and that Holding's reliance the Company will make a notation on such exemption is predicated upon its records and give instructions to any registrar or transfer agent of the Lenders' representations contained Shares in order to implement the restrictions on transfer set forth and described herein. In addition, such Person understands that such securities must be held indefinitely unless a subsequent disposition thereof is registered or qualified under the Securities Act and such laws or is exempt from such registration or qualification.
(eh) Such Person (A) The Investor understands that no U.S. or foreign government or regulatory authority or agency has been furnished with passed on or has had full access to all made any recommendation or endorsement of the information that it considers necessary Shares or appropriate to make an informed investment decision with respect to the New Notes, (B) has had an opportunity to discuss with management fairness or suitability of Holding the intended business and financial affairs of Holding and to obtain information (to the extent Holding possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access, (C) can bear the economic risk of (x) an investment in the New Notes indefinitely and (y) a total loss in respect Shares nor have such authorities passed upon or endorsed the merits of such investment, and (D) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks offering of and form an investment decision with respect to its investment in the New Notes to protect its own interest in connection with such investmentShares.
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