Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Holder represents and warrants to the Company as follows: (i) Such Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, and (ii) by reason of such Holder’s business and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment. b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock. (i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Securities Purchase and Sale Agreement (Northern Oil & Gas, Inc.), Securities Purchase and Sale Agreement (Northern Oil & Gas, Inc.)
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Each Holder hereby represents and warrants to the Company Purchaser as follows, solely with respect to himself, herself or itself:
(ia) Such Holder has all necessary power and authority to execute and deliver this Agreement and to perform his, her or its respective obligations hereunder. If Holder is an “accredited investor” within individual, Holder has the meaning legal capacity to execute and deliver this Agreement. If Holder is an entity, the execution and delivery by such Holder of Rule 501 of Regulation D promulgated this Agreement and the performance by the Securities Holder of its obligations hereunder have been duly and Exchange Commission pursuant validly authorized by the governing body of Holder and no other corporate or other proceedings on the part of Holder are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered by Holder and, assuming the due authorization, execution and delivery hereof by Purchaser, constitutes a valid and binding obligation of Holder, enforceable against the Holder in accordance with its terms (subject to the Securities Act effects of 1933bankruptcy, as amendedinsolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (iiwhether considered in a proceeding in equity or at law)).
(c) by reason Holder is the record and Beneficial Owner of all of the Owned Shares indicated opposite such Holder’s business and financial experience such Holder has such knowledgename on Schedule I hereto, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks which constitute all of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time Owned Shares Beneficially Owned by such Holder shall modifyas of the date hereof, amend and which are free and clear of all liens, pledges, charges, claims, security interests and other encumbrances. Other than as provided in this Agreement and under applicable securities laws, there are no restrictions on the voting rights or affect such Holder’s right to any remedy based onof disposition, or with respect any co-sale rights or rights of first refusal or similar rights, pertaining to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred StockOwned Shares.
(id) Such Neither the execution and delivery of this Agreement nor the consummation by the Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish hereby will conflict with or constitute a violation of or default under any contract, commitment, agreement, arrangement or restriction of any kind to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the which Holder is not relying on any such representation a party or warranty not contained in this Agreement; (v) this Agreement by which Holder is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreementbound.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cronos Group), Support Agreement (Walker Stephen Nicholas)
Representations and Warranties of the Holders. In connection with the receipt Each Holder for itself only hereby represents, warrants and agrees as of the Preferred Stock Consideration, each Holder represents and warrants to the Company as followsdate hereof:
(a) The Holder has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Holder and constitutes the legal, valid and binding obligation of such Holder, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect that affect the enforcement of creditors’ rights generally and by equitable limitations on the availability of specific remedies.
(b) The execution, delivery and performance by such Holder of this Agreement and consummation by the Holder of the transactions contemplated hereby do not and will not: (i) Such violate any decree or judgment of any court or other governmental authority applicable to or binding on the Holder; (ii) violate any provision of any federal or state statute, rule or regulation which is, to the Holder’s knowledge, applicable to the Holder; or (iii) violate any contract to which the Holder is a party or by which such Holder or any of its respective assets or properties are bound. No consent or approval of, or filing with, any governmental authority or other person not a party hereto is required for the execution, delivery and performance by the Holder of this Agreement.
(c) The Holder is an “accredited investor” within .”
(d) The Holder is aware of the meaning of Rule 501 of Regulation D promulgated by Company’s business affairs and financial condition, and has acquired sufficient information about the Securities Company to reach an informed and Exchange Commission knowledgeable decision to acquire securities pursuant to the Securities Act of 1933, as amended, and (ii) by reason of such Holder’s business and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands , and acknowledges that following the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accountingClosing, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”)complete such transactions, including, but not limited toto mergers, information acquisitions and financings all on terms and conditions which the Company in its sole discretion deem acceptable or advisable, the effect of some or all of which will be a dilution of such Holder’s equity ownership in the Company.
(e) The Holder is acquiring the Exchange Shares or Warrant Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act; provided, however, that except as provided below in paragraph (h) of this section, by making the representations herein, such Holder does not agree to hold the Exchange Shares or Warrant Shares for any minimum or other 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.
(f) The Holder has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transactions contemplated hereby.
(g) Other than consummating the transactions contemplated hereunder, Holder has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Holder, executed any purchases or sales, including short sales, of the securities of the Company during the period commencing from the time that such Holder first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereof. Notwithstanding the foregoing, in the case of a Holder that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Holder’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Holder’s assets, the representation set forth above shall only apply with respect to the Company’s financial and operating performance and portion of assets managed by the Company’s business strategies, opportunities and prospects, which Information has not been communicated portfolio manager that made the investment decision to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of purchase the securities implied by the transactions contemplated covered by this Agreement; .
(iiih) such Holder has not requested The Securities issued pursuant to this Agreement shall bear a legend substantially as follows: THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY.
(i) The Exchange Shares shall be deemed “restricted” securities within the meaning of Rule 144 (as defined below) and does not wish to receive shall bear the Information; (iv) neither forgoing legend for a period of six months following the Closing Date. For two years from the date of this Agreement, the Company nor any of its affiliatescovenants that it will file the reports required to be filed under the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, officersin the event that the Company is not required to file such reports, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except it will make publicly available information as set forth in this AgreementRule 144(c) promulgated under the Securities Act), and it will take such further action as the Holder is not relying on any such representation may reasonably request, or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in extent required from time to time to enable the foregoingHolder to sell its Securities without registration under the Securities Act within the limitation of the exemption provided by and to the extent applicable (a) Rule 144 under the Securities Act, as such Holder understands that, based on its experience, such Holder Rule may be subject amended from time to a disparity of information between time, or (b) any similar rule or regulation hereafter adopted by the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this AgreementCommission (collectively, “Rule 144”).
Appears in 2 contracts
Sources: Warrant Exercise or Exchange Agreement (Hepalife Technologies Inc), Warrant Exercise or Exchange Agreement (Hepalife Technologies Inc)
Representations and Warranties of the Holders. In connection with the receipt Each of the Preferred Stock Consideration, each Holder Holders represents and warrants to the Company Company, severally (and not jointly or jointly and severally), solely with respect to itself, as follows:
(i) 6.1 Such Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933a corporation, as amendedlimited liability company or limited partnership duly incorporated, and (ii) by reason of such Holder’s business and financial experience such Holder has such knowledgeformed or organized, sophistication and experience in making similar investments validly existing and in business and financial matters generally so as to be capable of evaluating good standing under the merits and risks laws of the Preferred Stockjurisdiction of its incorporation, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company formation or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertaintyorganization. Such Holder has sought such accountingthe full requisite power and authority to own its property, legal carry on its business as now being conducted, and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by carry out the transactions contemplated by this Agreement and the applicable Warrant.
6.2 Such Holder has all requisite power, authority and legal capacity to enter into this Agreement; , to perform its respective obligations under this Agreement and the applicable Warrant, and to consummate the transactions that are the respective subjects of this Agreement and the applicable Warrant. This Agreement has been duly authorized, executed and delivered by such ▇▇▇▇▇▇ and, upon due authorization, execution and delivery by the Company and each of the other Holders, will constitute the valid and legally binding agreement of such Holder, enforceable in accordance with its terms against such Holder, except as such enforceability may be limited by the Enforceability Exceptions.
6.3 The execution and delivery of this Agreement by such Holder does not, and the consummation of the transactions contemplated hereby will not (with or without the giving of notice or the lapse of time or both), (i) violate or conflict with or result in any default under any provision of the organizational documents of such Holder or any of its subsidiaries, (ii) violate any provision of any law, or any order, judgment or decree of any court or other governmental authority applicable such Holder or any of its subsidiaries or any of their respective assets or properties, or (iii) violate or result in the cancellation, modification, revocation or suspension of any material license, franchise or permit held by such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor or any of its affiliatessubsidiaries, officersunless, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of with respect to the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; foregoing clauses (vii) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary iii), such violation, cancellation, modification, revocation or suspension would not, individually or in the foregoingaggregate, be material to such Holder understands thatand its subsidiaries, based on its experience, such Holder may be subject to taken as a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreementwhole.
Appears in 2 contracts
Sources: Omnibus Warrant Amendment Agreement (Vapotherm Inc), Omnibus Warrant Amendment Agreement (Vapotherm Inc)
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock ConsiderationThe Holders, each Holder represents jointly and warrants severally, hereby represent and warrant to the Company as follows:
(ia) Such Holder Each of Rockall and ▇▇▇▇▇▇▇ is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933exempted or limited liability company, as amendedthe case may be, duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation. Each Holder has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and such execution, delivery and performance has been duly and validly authorized. This Agreement has been duly and validly executed and delivered by each Holder and constitutes a legal, valid and binding obligation of each such Holder, enforceable against such Holder in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (iiregardless of whether such enforceability is considered in a proceeding in equity or at law) (the “enforceability qualifications”).
(b) The execution and delivery by reason each Holder of this Agreement do not, and the performance by each Holder of such Holder’s business obligations under this Agreement and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks consummation of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
transactions contemplated hereby will not: (i) Such Holder acknowledges that the Company may have access to conflict with or may possess material nonpublic result in a violation or confidential information regarding the Company and its securities (the “Information”)breach of any term or provision of any law, includingstatute, but not limited torule or regulation or any order, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated judgment or decree of any Governmental or Regulatory Authority applicable to such Holder or made publicany of such Holder’s properties or assets; or (ii) the Information may affect the value of the Company’s securitiesconflict with or result in a violation or breach of, constitute a default under, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) require such Holder has not requested to obtain any consent, approval or action of, make any filing with or give any notice to any Person as a result or under the terms of, any contract, agreement, permit or license to which such Holder is a party. No consent, approval or action of, filing with or notice to any Governmental or Regulatory Authority on the part of any Holder is required in connection with the execution and does not wish to receive the Information; (iv) neither the Company nor any delivery of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, other than any filing with the Commission required in connection with the execution and/or delivery of this Agreement or the issuance of the press release referred to in Section 3.05. No member of the ▇▇▇▇▇▇▇ Group beneficially owns any Equity Securities other than as disclosed in the ▇▇▇▇▇▇▇ Schedule 13D. The Holders have provided to the Company true and complete information regarding each ▇▇▇▇▇▇▇ Designee as would be required by federal securities laws and the Holder is not relying rules of the Commission to be included in a proxy statement (if such proxy statement were being filed with the Commission on any the date hereof) naming such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreementdesignees as director nominees.
Appears in 2 contracts
Sources: Shareholder Agreement (Zix Corp), Shareholder Agreement (Rockall Emerging Markets Master Fund LTD)
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Each Holder represents and warrants to the Company as follows:
(ia) Such Holder owns and holds his Debt, free and clear of any liens or encumbrances and has full power and authority to transfer and dispose of his Debt, free and clear of any liens or encumbrances.
(b) Holder has the requisite power and authority to enter into and perform his obligations under this Agreement and each other agreement entered into by the parties hereto in connection with the transactions contemplated by this Agreement.
(c) The execution, delivery and performance of this Agreement by the Holder and the consummation by the Holder of the transactions contemplated hereby will not result in a violation of any agreements of the Holder.
(d) This Agreement has been duly authorized, executed, and delivered by the Holder and, upon due execution and delivery by the Holder, will constitute, legal, valid, and binding obligations enforceable against the Holder in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium, and other similar laws of general application affecting creditors’ rights, and except as enforcement may be limited by general equitable principles.
(e) Holder understands that the Shares are “restricted securities” and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or any applicable state securities law and is acquiring the Shares as principal for his own account and not with a view to or for distributing or reselling the Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of the Shares in violation of the Securities Act or any applicable state securities law and has no arrangement or understanding with any other persons regarding the distribution of the Shares in violation of the Securities Act or any applicable state securities law. Holder does not have any agreement or understanding, directly or indirectly, with any person to distribute any of the Shares.
(f) Holder is an “accredited investor” within the meaning of as defined in Rule 501 of Regulation D promulgated by 501(a) under the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, and (ii) by reason of such Holder’s business and financial experience such Act. Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stockprospective investment in the Shares, and has so evaluated the merits and risks of such investment. Holder is able to bear the economic risk of such an investment in the Shares and, at the present time, would be is able to afford a complete loss of such investment.
b. Such (g) Holder has been afforded the had an opportunity to ask questions discuss the Company’s business, management, and financial affairs with management of the Company and has had an opportunity to view the Company’s facilities. Holder acknowledges that (i) except for the matters that are expressly covered by the Agreement, Holder is relying on his own investigation and analysis in entering into the Agreement and consummating the transactions contemplated thereby, (ii) Holder is sophisticated and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as Holder has deemed necessary in connection with the execution, delivery and performance of the Agreement, (iii) Holder has reviewed the Disclosure Materials, and (iv) the Company makes no representation or its representatives. Neither such inquiries nor any warranty to Holder other due diligence investigations conducted at any time by such Holder shall modifythan as expressly made in this Agreement, amend or affect such Holder’s right to any remedy based onincluding, or without limitation, with respect to the accuracy any projections, estimates or inaccuracy ofbudgets heretofore delivered or made available to Holder concerning future revenues, expenses, expenditures or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree results of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding operations of the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by is consummating the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made Agreement without any representation or warranty, express or implied, regarding by the Company or any aspect of the transaction contemplated by this Agreement its advisors or affiliates, except as expressly set forth in this Agreement, and .
(h) It is understood that each certificate representing the Holder is not relying on any such representation Shares shall be stamped or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything otherwise imprinted with legends substantially similar to the contrary following (in the foregoingaddition to any legend required under applicable state securities laws: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, such Holder understands thatSOLD OR OTHERWISE TRANSFERRED, based on its experienceASSIGNED, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this AgreementPLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
Appears in 1 contract
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Holder represents The Holders hereby represent and warrants warrant to the Company as follows:
3.1 If such Holder is not a natural person, such Shareholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized.
3.2 The execution, delivery and performance of this Agreement has been duly authorized by all necessary action on the part of the Holders, and constitutes a legal, valid and binding obligation of the Holders, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by: (i) Such Holder applicable bankruptcy, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally; and (ii) general principles of equity (regardless of whether such enforceability is an “accredited investor” within considered in a proceeding in equity or at law).
3.3 The Holders represent all of the meaning issued and outstanding Series A Preferred Shares.
3.4 The Holders are not party to, subject to or bound by any agreement or any judgment, order, writ, prohibition, injunction or decree of Rule 501 any court or other governmental body which would prevent the execution or delivery of Regulation D promulgated this Agreement by the Securities Holders.
3.5 Neither the execution, delivery and Exchange Commission pursuant performance of this Agreement nor the consummation of any of the transactions contemplated hereunder will conflict with or result in any violation of or constitute a breach of any of the terms or provisions of the articles of incorporation, by-laws or other organizational documents of the Holders.
3.6 All consents or approvals or authorizations of, or registrations, filings or declarations with, any governmental authority or any other person, if any, required in connection with the execution, delivery and performance by the Holders of this Agreement or the transactions contemplated hereby have been or at the Closing Date will have been obtained by the Holders and will be in full force and effect.
3.7 There are no actions, suits, proceedings pending or, to the Holders’ knowledge, threatened against the Holders or against any of the properties or assets of the Holders in any court or before any arbitrator of any kind or before or by any governmental authority. The Holders are not party to or subject to any writ, order, decree or judgment and there is no action, suit, proceeding or investigation by the Holders currently pending or which the Holders intend to originate.
3.8 No broker or finder has acted for the Holders in connection with this Agreement or the transactions contemplated hereby, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such transactions based upon agreements, arrangements or understandings made by or on behalf of the Holders.
3.9 The Holders understand that the Common Shares have not been registered under the Securities Act of 1933, as amendedamended (the “1933 Act”) or any other applicable securities law and that all of the Common Shares will constitute “restricted securities” under the federal securities laws of the United States, and, accordingly, that none of the Common Shares may be offered, sold, transferred, pledged, hypothecated or otherwise disposed of, unless either registered pursuant to, or in a transaction exempt from, applicable securities law.
3.10 The Common Shares issued to the Holders are being acquired for investment purposes only and not with a view to any public distribution thereof in violation of any securities laws, and (ii) the Holders shall not offer to sell or otherwise dispose of the Common Shares so acquired by reason it in violation of any of the registration requirements of the Securities Act. The Holders acknowledge that they are able to fend for themselves, can bear the economic risk of their investments in the Common Shares, and have such Holder’s business and financial experience such Holder has such knowledge, sophistication knowledge and experience in making similar investments financial and in business and financial matters generally so as to be that they are capable of evaluating the merits and risks of an investment in all of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investmentCommon Shares.
b. Such Holder has been afforded 3.11 The Holders are not issuers, underwriters or dealers, within the opportunity to ask questions meanings of Section 2 of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock▇▇▇▇ ▇▇▇.
3.12 The Holders have neither solicited nor arranged (iother than through any broker) Such Holder acknowledges that for the Company may have access solicitation of any orders to buy in anticipation of or may possess material nonpublic or confidential information regarding in connection with the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value proposed sale of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this AgreementCommon Shares.
Appears in 1 contract
Sources: Waiver and Consent Agreement (Castor Maritime Inc.)
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Each Holder party hereto hereby represents and warrants to each of the Company other parties on the date hereof and as of each Closing Date as follows:
(ia) Such Holder has the full power, authority and legal right to execute, deliver and perform this Agreement and to consummate the transactions contemplated herein. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary action, corporate or otherwise, of such Holder. This Agreement has been duly executed and delivered by such Holder and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally.
(b) Such Holder is acquiring the Warrants for its own account, without a view to the distribution thereof in violation of the Securities Act, all without prejudice, however, to the right of such Holder at any time, in accordance with this Agreement or the other Warrant Documents, lawfully to sell or otherwise to dispose of all or any part of the Warrants held by it.
(c) Such Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by under the Securities Act.
(d) Such Holder understands that the Company has not registered the Warrants or the Warrant Shares under the Securities Act, and Exchange Commission pursuant to each Holder agrees that the Warrants and the Warrant Shares may not be sold or transferred or offered for sale or transfer by it without registration under the Securities Act or the availability of 1933, as amended, and (ii) by reason of such Holder’s business and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investmentan exemption therefrom.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Warrantholders Agreement (Bright Health Group Inc.)
Representations and Warranties of the Holders. In connection with Each Holder, for itself only, hereby makes the receipt of the Preferred Stock Consideration, each Holder represents following representations and warrants warranties to the Company as followsCompany:
(a) Such Holder has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Holder and constitutes the legal, valid and binding obligation of such Holder, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws from time to time in effect that affect creditors’ rights generally, and by legal and equitable limitations on the availability of specific remedies.
(b) The execution, delivery and performance by such Holder of this Agreement and consummation by such Holder of the transactions contemplated hereby do not and will not: (i) violate the organizational documents of such Holder, (ii) violate any decree or judgment of any court or other governmental authority which is, to such Holder’s knowledge, applicable to or binding on suchHolder; (iii) violate any provision of any federal or state statute, rule or regulation which is, to such Holder’s knowledge, applicable to suchHolder; or (iv) assuming the truthfulness of the Company’s representations and warranties set forth in Section 2.2(b) hereof, violate any contract to which suchHolder or any of its assets or properties are bound, or conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which suchHolder is a party. Assuming the truthfulness of the Company’s representations and warranties set forth in Section 2.2(b) hereof, no consent or approval of, or filing with, any governmental authority or other person not a party hereto is required for the execution, delivery and performance by such Holder of this Agreement or the consummation of the transaction.
(c) Such Holder is an “accredited investor” within the meaning sole record and beneficial owner of Rule 501 its portion of Regulation D promulgated the Securities, free and clear of any encumbrances created by or through such Holder. The Securities, as set forth on Schedule A hereto, are the only securities of the Company held by such Holder, other than Common Stock of the Company currently held or beneficially owned by the Securities and Exchange Commission pursuant Holders (the “Common Stock”).
(d) There are no outstanding rights, options, subscriptions or other agreements or commitments obligating such Holder with respect to the Securities, other than any agreements to which the Company is party.
(e) Such Holder has taken no action that would give rise to any claim by any person for brokerage commissions, finder’s fees or similar payments relating to this Agreement or the transactions contemplated hereby payable by any person other than such Holder.
(f) No proceedings to which such Holder is a party relating to the Securities Act of 1933are pending or, as amended, and (ii) by reason to the knowledge of such Holder’s business and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating threatened before any court, arbitrator or administrative or governmental body that would adversely affect the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to surrender the accuracy or inaccuracy of, or compliance with, Securitiesto the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred StockCompany.
(ig) Such Holder acknowledges that Effective upon Closing (and receipt of the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”Payoff Amount by Holders’ counsel), includingthe Holder forever releases and discharges the Company, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategiesexecutors, opportunities and prospectsadministrators, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securitiesparent company, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliatesholding company, subsidiaries, successors, predecessors, officers, directors, principals, agents, partners, members, shareholders, control persons, past and present employees, agents insurers, and assigns (collectively, the “Company Releasees”) from all actions, causes of action, suits, debts, dues, sums of money, financial obligations, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or representatives has made equity, against the Company Releasees that the Holder or its heirs, executors, administrators, successors and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any representation matter, cause or warrantything whatsoever, express whether or impliednot known or unknown, regarding any aspect from the beginning of the transaction contemplated by world to the day of the date of this Release solely arising from or related to the Securities. The Holder represents, agrees and confirms that the Payoff Amount will be deemed full satisfaction of all obligations the Company will or may herein after have to the Holder solely relating to the Securities, including any amounts past due under the Notes, whether or not such Notes are listed on Schedule A hereto and the Company shall have no further liabilities or obligations to the Holder (except as may arise under this Agreement except as set forth or in this Agreement, and connection with the Holder is not relying on any such representation or warranty not contained in this Agreement; Common Stock).
(vh) this Agreement is Upon receipt of the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoingPayoff Amount by Holders’ counsel, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between authorizes the Company or its designees to file any UCC-3 financing statement amendments or any other release of termination documentation required (including any filings with the USPTO) to terminate any security interest in the Company in favor of such Holder, including its intellectual property, held by the Holders, it being understood that the Company is obligated to receive the consent of any other lender, including Longview Special Finance, Inc. prior to any such termination of a security interest in favor of such other lenders and take all necessary steps to preserve such security interests and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreementperfection thereof.
Appears in 1 contract
Sources: Payoff Agreement (NaturalNano, Inc.)
Representations and Warranties of the Holders. In connection with As a material inducement to the receipt of the Preferred Stock ConsiderationCompany to enter into and perform its obligations under this Agreement, each Holder represents and warrants to the Company as follows:of the date hereof as set forth below.
(ia) Such The Holder is an “accredited investor” within has all requisite power and authority to execute and deliver this Agreement and any and all instruments necessary or appropriate in order to effectuate fully the meaning terms and conditions of Rule 501 of Regulation D promulgated by the Securities this Agreement and Exchange Commission pursuant to the Securities Act of 1933, as amended, perform and (ii) by reason of consummate such Holder’s business obligations hereunder. This Agreement and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks performance of the Preferred StockHolder’s obligations hereunder, is able to bear have been duly authorized by all requisite action on the economic risk part of such investment andthe Holder, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder and this Agreement has been afforded duly and validly executed and delivered by the opportunity to ask questions Holder and constitutes a valid and legally binding obligation of the Company Holder, enforceable against the Holder in accordance with its terms and conditions, except as enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time Laws affecting creditors’ rights generally or by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree general principles of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stockequity.
(ib) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company The execution, delivery and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result consummation of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated hereby, shall not (i) violate any law applicable to the Holder or (ii) conflict with or result in any violation or breach of, any of the terms, conditions or provisions of, or constitute (with due notice or lapse of time, or both) a default under, or give rise to any right of termination, cancellation or acceleration or result in the creation of any encumbrance upon any of the assets of the Holder, any material contracts to which the Holder is a party or by which the Holder or any of the Holder’s assets is or may be bound, in each case, which would prohibit the Holder from consummating the transactions contemplated hereby. The Holder has not been or is not required to give any notice to, or make any filing with, any governmental authority or any other Person, or obtain any permit, in each case, for the valid execution, delivery and performance by the Holder of this Agreement.
Appears in 1 contract
Sources: Stockholders' Agreement (Thermadyne Australia Pty Ltd.)
Representations and Warranties of the Holders. In connection with As a material inducement to the receipt of the Preferred Stock ConsiderationCompany to enter into and perform its obligations under this Agreement, each Holder represents and warrants to the Company as follows:of the date hereof as set forth below.
(a) The Holder has all requisite power and authority to execute and deliver this Agreement and any and all instruments necessary or appropriate in order to effectuate fully the terms and conditions of this Agreement and to perform and consummate such Holder's obligations hereunder. This Agreement and the performance of the Holder's obligations hereunder, have been duly authorized by all requisite action on the part of the Holder, and this Agreement has been duly and validly executed and delivered by the Holder and constitutes a valid and legally binding obligation of the Holder, enforceable against the Holder in accordance with its terms and conditions, except as enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency or other Laws affecting creditors' rights generally or by general principles of equity.
(b) The execution, delivery and performance by the Holder of this Agreement, and the consummation of the transactions contemplated hereby, shall not (i) violate any law applicable to the Holder or (ii) conflict with or result in any violation or breach of, any of the terms, conditions or provisions of, or constitute (with due notice or lapse of time, or both) a default under, or give rise to any right of termination, cancellation or acceleration or result in the creation of any encumbrance upon any of the assets of the Holder, any material contracts to which the Holder is a party or by which the Holder or any of the Holder's assets is or may be bound, in each case, which would prohibit the Holder from consummating the transactions contemplated hereby. The Holder has not been or is not required to give any notice to, or make any filing with, any governmental authority or any other Person, or obtain any permit, in each case, for the valid execution, delivery and performance by the Holder of this Agreement.
(c) Upon the acquisition of any shares of Common Stock and Preferred Stock (including on the date hereof), in addition to any other representations and warranties set forth in any other document required by the Board with respect to such acquisition, each Holder severally, as to itself (and not as to any other Person) makes the representations and warranties set forth below to the Company with respect to such shares of Common Stock and Preferred Stock, effective upon the issuance thereof and upon such Holder's execution and delivery of a counterpart hereof or an Adoption Agreement.
(i) Such The Holder is an “accredited investor” within acquiring the meaning shares of Rule 501 of Regulation D promulgated Common Stock and Preferred Stock for investment for the Holder's own account and not with a view to, or for resale in connection with, the distribution or other disposition thereof except in compliance with this Agreement and as permitted by law, including without limitation the Securities Act. The Holder does not have any present intent to resell or distribute any of its shares of Common Stock and Exchange Commission Preferred Stock. If the Holder is a corporation, trust, partnership or other organization, it was not organized for the specific purpose of acquiring shares of Common Stock and Preferred Stock.
(ii) The Holder has been advised that its shares of Common Stock and Preferred Stock have not been registered under the Securities Act, that such shares may not be sold or otherwise disposed of unless they are registered thereunder or an exemption from registration is available and that accordingly the Holder may be required to bear the economic risk of the investment in such shares for an indefinite period of time. The Holder also understands that the Company does not have any intention of registering the shares of Common Stock and Preferred Stock under the Securities Act or of supplying the information which may be necessary to enable the Holder to sell such shares pursuant to Rule 144 under the Securities Act.
(iii) The Holder has been given the opportunity to obtain any information or documents, and to ask questions and receive answers about such documents, the Company and its subsidiaries and the business and prospects of the Company and its subsidiaries (including, without limitation, the transactions to be consummated pursuant to the Securities Act terms of 1933, the Merger Agreement) as amended, it deems necessary to evaluate the merits and (ii) by reason risks related to its investment in shares of Common Stock and Preferred Stock and no representations concerning such Holder’s business and financial experience matters or any other matters related to such investment have been made to the Holder except as set forth in this Agreement. The Holder has such knowledgehad an opportunity to consult his or its own attorney, sophistication accountant or investment advisor with respect to the investment contemplated hereby and its suitability for the Holder, including the tax and other economic considerations related to the investment.
(iv) The Holder (i) has knowledge and experience in making similar investments financial and in business and financial matters generally so as to be such that the Holder is capable of evaluating the merits and risks of the purchase of the shares of Common Stock and Preferred StockStock as contemplated by this Agreement, (ii) understands and has taken cognizance of all risk factors related to the purchase of the shares of Common Stock and Preferred Stock and (iii) is able to bear the economic risk of such the investment and, at in the present time, would be able shares of Common Stock and Preferred Stock for an indefinite period of time and can afford to afford suffer a complete loss of the investment in such investmentshares.
b. Such (v) The Holder has been afforded informed that the opportunity to ask questions offer of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants shares of Common Stock and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is acquiring is being made pursuant to an exemption from the registration requirements of the Securities Act relating to transactions by an issuer not relying on involving a public offering, and that, consequently, the materials relating to the offer have not been subject to review and comment by the staff of the Securities and Exchange Commission or any such representation or warranty other governmental authority. The Holder is not contained in this Agreement; (v) this Agreement is the acquiring shares of Common Stock and Preferred Stock as a result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything or subsequent to any advertisement, article, notice or other communication published in any newspapers, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a person not previously known to the contrary Holder in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate connection with investments in the transactions contemplated by this Agreementsecurities generally.
Appears in 1 contract
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Each Holder jointly and severally represents and warrants to the Company as follows:
(ia) Such The Holder has full legal power to execute and deliver this Agreement and to perform its obligations hereunder. All acts required to be taken by the Holder to enter into this Agreement and to carry out the transactions contemplated hereby have been properly taken; and this Agreement constitutes a legal, valid and binding obligation of the Holder enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization or other similar legal requirements affecting the enforcement of creditors’ rights generally and by general principles of equity.
(b) The Holder has reviewed the SEC Filings of the Company.
(c) The Holder has been given an opportunity to ask questions and receive answers from the officers and directors of the Company and to obtain additional information from the Company.
(d) The Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Company’s securities and has obtained, in its judgment, sufficient information about the Company to evaluate the merits and risks of an investment in the Company.
(e) The Holder is relying solely on the representations and warranties contained in Section 2 hereof and in certificates delivered hereunder, as well as the SEC Filings, in making its decision to enter into this Agreement and consummate the transactions contemplated hereby and no oral representations or warranties of any kind have been made by the Company or its officers, directors, employees or agents to the Holder.
(f) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Holder.
(g) The Exchange Shares and Warrant Shares are to be acquired for the Holder’s own account and is not intended to be sold or otherwise disposed of in violation of the securities laws of the United States.
(h) The Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission pursuant to 501(a) under the Securities Act of 1933, as amended, and amended (ii) by reason of such Holder’s business and financial experience such Holder has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock“Securities Act”).
(i) Such The Holder understands that the Exchange Shares and Warrant Shares are not registered under the Securities Act or in any state and that such securities may not be sold unless they are subsequently registered or an exemption from such registration is available. The Holder acknowledges that the Company certificates representing the Exchange Shares and Warrant Shares may have access contain legends to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in reflect the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Debt Exchange and Preferred Stock Conversion Agreement (Frederick's of Hollywood Group Inc /Ny/)
Representations and Warranties of the Holders. In connection with Each Holder hereby makes the receipt of the Preferred Stock Consideration, each Holder represents following representations and warrants warranties to the Company as followsof the date hereof:
a. The Holder has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby (the "Transactions"). This Agreement has been duly and validly executed and delivered by the Holder and constitutes the legal, valid and binding obligation of the Holder, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws from time to time in effect that affect creditors' rights generally, and by legal and equitable limitations on the availability of specific remedies.
b. The execution, delivery and performance by the Holder of this Agreement and consummation by the Holder of the Transactions do not and will not: (i) Such violate the organizational documents of the Holder, (ii) violate any decree or judgment of any court or other governmental authority applicable to or binding on the Holder; or (iii) violate any contract to which the Holder or any of its assets or properties are bound, or conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of , any agreement, indenture or instrument to which Holder is an “accredited investor” within a party.
c. With respect to the meaning surrender of Rule 501 the Surrendered Interests, (i) the Surrendering Holder is the sole record and beneficial owner of Regulation D promulgated by the Securities Surrendered Interests, free and Exchange Commission clear of any taxes and liens; (ii) the Surrendered Interests, when delivered and paid for in accordance with the terms of this Agreement will be validly surrendered and free from all taxes and liens (other than any applicable transfer taxes); and (iii) the Surrendered Interests, upon surrendered are not and will not be as of the date hereof subject to any transfer restriction, other than (x) pursuant to security agreements and/or notes specifically set forth herein and/or (y) the restriction that the Surrendered Interests have not been registered under the Securities Act of 1933, as amendedamended ("Securities Act") and, therefore, cannot be resold unless registered under the Securities Act or in a transaction exempt from or not subject to the registration requirements of the Securities Act (collectively, the "Permitted Restrictions"); and will be the legal and beneficial owner of such the Surrendered Interests, free and clear of any liens or transfer restrictions, other than the permitted restrictions.
d. The Holder (i) has adequate information concerning the business and financial condition of the Company and the terms of the Share Exchange Agreement to make an informed decision regarding the surrender of the Surrendered Interests; and (ii) by reason of has independently and without reliance upon the Company, and based on such Holder’s business and financial experience such information as the Holder has such knowledgedeemed appropriate, sophistication made its own analysis and experience in making similar investments and in business and financial matters generally so as decision to be capable of evaluating enter into this Agreement, except that the merits and risks of the Preferred Stock, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded relied upon the opportunity to ask questions of the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the Company's express representations, warranties, warranties and covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, the Share Exchange Agreement and related documents and the Holder is not relying reports publicly available on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result ▇▇▇▇▇ system of arm’s-length negotiations between the Company Securities and Exchange Commission.
e. No proceedings relating to the Surrendered Interests are pending or, to the knowledge of the Holder; and (vi) notwithstanding anything , threatened before any court, arbitrator or administrative or governmental body that would adversely affect the Holder's right to surrender the Surrendered Interests to the contrary in Company.
f. Such Holder does not hold any warrants to purchase shares of the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between Company's common stock issued by the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this AgreementCompany.
Appears in 1 contract
Sources: Surrender and Amendment Agreement (NaturalNano, Inc.)
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock Consideration, each Each Holder hereby represents and warrants to the Company with respect solely to itself and not with respect to any other Holder as followsfollows as of the Effective Date:
Section 2.1. Each Holder represents and warrants that it has good and marketable title to the shares of Series C-22 Preferred held by such Holder free and clear of all liens, charges and encumbrances whatsoever.
Section 2.2. Each Holder is a corporation, limited liability company or partnership duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization.
Section 2.3. Each Holder has the requisite power and authority to enter into this Agreement. The execution, delivery and performance of this Agreement by each Holder and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate or partnership action, and no further consent or authorization of such Holder or its Board of Directors, stockholders, or partners, as the case may be, is required. When executed and delivered by the Holders, this Agreement shall constitute a valid and binding obligation of each Holder enforceable against such Holder in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application.
Section 2.4. Each Holder is acquiring the shares of Series C-12 Preferred solely for its own account and not with a view to or for sale in connection with distribution. Each Holder does not have a present intention to sell any of the shares of Series C-12 Preferred, nor a present arrangement (whether or not legally binding) or intention to effect any distribution of any of the shares of Series C-12 Preferred to or through any person or entity; provided, however, that by making the representations herein, such Holder does not agree to hold the shares of Series C-12 Preferred for any minimum or other specific term and reserves the right to dispose of the shares of Series C-12 Preferred at any time in accordance with federal and state securities laws applicable to such disposition. Each Holder acknowledges that it (i) Such Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, and (ii) by reason of such Holder’s business and financial experience such Holder has such knowledge, sophistication knowledge and experience in making similar investments financial and in business and financial matters generally so as to be such that Holder is capable of evaluating the merits and risks of Holder’s investment in the Preferred StockCompany, (ii) is able to bear the economic risk financial risks associated with an investment in the Series C-12 Preferred and (iii) has been given full access to such records of such investment and, at the present time, would be able Company and to afford a complete loss the officers of such investmentthe Company as it has deemed necessary or appropriate to conduct its due diligence investigation.
b. Such Section 2.5. Each Holder understands that the shares of Series C-12 Preferred must be held indefinitely unless such shares of Series C-12 Preferred are registered under the Securities Act of 1933, as amended (the “Securities Act”) (recognizing that the Company has no obligation hereunder to effect such registration) or an exemption from registration is available. Each Holder acknowledges that such person is familiar with Rule 144 of the rules and regulations of the Securities and Exchange Commission, as amended, promulgated pursuant to the Securities Act (“Rule 144”), and that such Holder has been afforded advised that Rule 144 permits resales only under certain circumstances. Each Holder understands that to the opportunity extent that Rule 144 is not available, such Holder will be unable to ask questions sell any shares of Series C-12 Preferred without either registration under the Securities Act or the existence of another exemption from such registration requirement.
Section 2.6. Each Holder understands that the shares of Series C-12 Preferred are being issued in reliance on a transactional exemption from the registration requirements of federal and state securities laws and the Company or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to is relying upon the truth and accuracy or inaccuracy of, or compliance with, of the representations, warranties, covenants agreements, acknowledgments and agreements understandings of such Holder set forth herein in this Agreementorder to determine the applicability of such exemptions and the suitability of such Holder to acquire the shares of Series C-12 Preferred. Each Holder understands that no United States federal or state agency or any government or governmental agency has passed upon or made any recommendation or endorsement of the shares of Series C-12 Preferred.
Section 2.7. Each Holder is an “accredited investor” (as defined in Rule 501 of Regulation D), and such Holder has such experience in business and financial matters that it is capable of evaluating the merits and risks of an investment in the shares of Series C-12 Preferred. Such Holder understands is not required to be registered as a broker-dealer under Section 15 of the Exchange Act of 1934, as amended, and such Holder is not a broker-dealer. Each Holder acknowledges that an investment in the shares of Series C-12 Preferred Stock is speculative and involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stockrisk.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties of the Holders. In connection with the receipt of the Preferred Stock ConsiderationEach Holder, each Holder severally but not jointly, represents and warrants to the Company and Flowers Foods as follows:
(ia) Such Holder is an “accredited investor” within Beneficially Owns the meaning aggregate principal amount of Rule 501 Debentures set forth opposite such Holder's name on the signature page hereto and such Holder will pass to the Company good and marketable title and Beneficial Ownership to the Debentures free and clear of Regulation D promulgated any claims, security interests, liens and encumbrances whatsoever.
(b) Such Holder has the legal power, authority and capacity to execute and deliver this Agreement and perform its obligations hereunder. The execution and delivery by such Holder of this Agreement and the performance by such Holder of its obligations hereunder have been duly and validly authorized and no further actions or proceedings on the part of such Holder are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.
(c) This Agreement constitutes the legal, valid and binding agreement of such Holder enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors' rights generally or by the Securities principles governing the availability of equitable remedies.
(d) This Agreement covers all of such Holder's Debentures. As of the date hereof, such Holder Beneficially Owns the aggregate principal amount of Debentures set forth on the signature page hereto.
(e) This Agreement and Exchange Commission pursuant to the Securities Act of 1933, as amendedexecution and delivery hereof by the Holder does not, and the consummation of the transactions contemplated hereby will not, (i) result in a violation of or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, agreement or other instrument or obligation to which such Holder is a party or by which any of its property or assets may be bound, or (ii) by reason of such Holder’s business and financial experience such Holder has such knowledgeviolate any order, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the Preferred Stockwrit, is able to bear the economic risk of such investment andinjunction, at the present timedecree, would be able to afford a complete loss of such investment.
b. Such Holder has been afforded the opportunity to ask questions of the Company statute, rule or its representatives. Neither such inquiries nor any other due diligence investigations conducted at any time by such Holder shall modify, amend or affect such Holder’s right to any remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in this Agreement. Such Holder understands and acknowledges that the Preferred Stock involves a high degree of risk and uncertainty. Such Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to the Preferred Stock.
(i) Such Holder acknowledges that the Company may have access to or may possess material nonpublic or confidential information regarding the Company and its securities (the “Information”), including, but not limited to, information with respect to the Company’s financial and operating performance and the Company’s business strategies, opportunities and prospects, which Information has not been communicated regulation applicable to such Holder or made public; (ii) the Information may affect the value of the Company’s securities, or may be indicative of a value of such securities that may be substantially different from the price of the securities implied by the transactions contemplated by this Agreement; (iii) such Holder has not requested and does not wish to receive the Information; (iv) neither the Company nor any of its affiliates, officers, directors, employees, agents properties or representatives has made any representation or warranty, express or implied, regarding any aspect of the transaction contemplated by this Agreement except as set forth in this Agreement, and the Holder is not relying on any such representation or warranty not contained in this Agreement; (v) this Agreement is the result of arm’s-length negotiations between the Company and the Holder; and (vi) notwithstanding anything to the contrary in the foregoing, such Holder understands that, based on its experience, such Holder may be subject to a disparity of information between the Company and the Holder but has nevertheless deemed it appropriate to participate in the transactions contemplated by this Agreementassets.
Appears in 1 contract