Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation as follows: (a) The Corporation has made available all information which the undersigned has requested in connection with the purchase of the Shares and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation. (b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants. (c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs. (d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants. (e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder. (f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision. (g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004. (h) The undersigned acknowledges and is aware of the following: (i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation; (ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants; (iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment; (iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation; (v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and (vi) The undersigned is a resident of the State set forth on the signature page hereto. (i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Sources: Stock Subscription and Purchase Agreement (Icop Digital, Inc)
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this offer, hereby warrants and represents and warrants to the Corporation as follows:
(aA) The Corporation undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
(B) The undersigned represents that he is an Accredited Investor as that term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the "Securities Act"). In general, an "Accredited Investor" is deemed to be an institution with assets in excess of $5,000,000 or individuals with net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with their spouse.
(C) The Company has not made available all information which any other representations or warranties to the undersigned with respect to the Company or rendered any investment advice.
(D) The undersigned has consulted with such independent legal counsel or other advisers as the undersigned has requested deemed appropriate to assist the undersigned in connection with evaluating the purchase proposed investment in the Company.
(E) The undersigned represents that the undersigned (i) has adequate means of providing for the undersigned's current financial needs and possible personal contingencies and has no need for liquidity of investment in the Company; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required; and (b) to sustain a complete loss of the Shares entire amount of the subscription; and the Warrants and the (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has been afforded an the opportunity to ask questions of of, and receive answers from the Corporation officers and/or directors of the Company acting on its behalf concerning the terms and conditions of the purchase of the Shares this transaction and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been provided, and availed himself of such opportunity to the extent the undersigned requires no additional information considers appropriate in order to permit the undersigned to evaluate the merits and risks of an investment in the CorporationCompany. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(bG) The undersigned further acknowledges that this Offering has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating not been passed upon or the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided thereof endorsed or approved by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrantsany state or federal authorities.
(cH) The undersigned acknowledges that Securities being subscribed for are being acquired solely for the Corporation's counsel has prepared this Agreement at the direction account of the Board undersigned for personal investment and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the undersigned means that no other person has a beneficial interest in the Securities, and that no other person has furnished or will furnish directly or indirectly, any part of Directors or guarantee the payment of any part of the Corporation and he, she or it has received no representation from consideration to be paid to the Corporation's counsel about the personal tax consequences of this AgreementCompany in connection therewith. The undersigned has relied upon his, her does not intend to dispose of all or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase any part of the Shares and Securities except in compliance with the Warrants and has not relied upon any opinion provisions of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Securities Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring Securities are being offered pursuant to the restrictions on transfer thereof resulting from their issuance without registration a specific exemption under the securities laws and to any restriction on transfer set forth in provisions of the Corporation's Articles Securities Act, which exemption(s) depends, among other things, upon the compliance with the provisions of Incorporation, as amended, or any applicable Bylaw or contract provisionthe Securities Act.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(hI) The undersigned acknowledges that the Company has made available to it copies of its annual report on Form 10-KSB for the year ended September 30, 2006 and is aware of the following:Form 10-QSB for the period ended December 31, 2006.
(iJ) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require undersigned hereby agrees that the Shares and Company may insert the Warrants be, following or similar legend on the face of any certificates evidencing the Securities if required in compliance with the Securities Act or state securities laws: "These securities have not been registered under the Act or the Securities Exchange Act of 19341933, as amendedamended ("Act"), or any state securities laws and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for sold or otherwise transferred or disposed of except pursuant to an effective registration statement under the undersigned Act and any applicable state securities laws, or an opinion of counsel satisfactory to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as counsel to the fairness issuer that an exemption from registration under the Act and any applicable state securities laws is available." The undersigned certifies that each of the terms of the offering foregoing representations and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsections (A) through (J) inclusive of Incorporation, this Section 3 are true as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date hereof and shall survive such date. If .
(K) Neither the Purchaser nor any person acting on its behalf or at its direction has engaged in any respect such representations and warranties purchase or statements shall not be true and accurate prior to sale of Company common stock (including without limitation any short sale, pledge, transfer, establish an open "put equivalent position" within the Corporation's acceptance meaning of Rule 16a-1(h) under the Exchange Act) during the ten (10) trading days immediately preceding the date of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforAgreement.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to to, and agrees with, the Corporation as follows:
(a) The Corporation has made available all information which the undersigned has requested in connection with the purchase adequate means of the Shares providing for current needs and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been providedpossible contingencies, and the undersigned requires anticipates no additional information to evaluate the merits and risks of an investment need now or in the Corporationforeseeable future to sell the Shares.
(b) The undersigned has such knowledge and experience in financial and business matters that makes the undersigned is capable of evaluating the merits and risks of acquisition of investment in the Shares and the Warrants Corporation and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrantsdecision.
(c) The undersigned acknowledges is aware that no federal or state agency has passed upon the Corporation's counsel has prepared this Agreement at Shares or made any finding or determination concerning the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences fairness of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsinvestment.
(d) The undersigned has had an opportunity to ask questions of and receive answers from representatives of the Corporation, concerning the terms and conditions of this investment and all such questions have been answered to the full satisfaction of the undersigned's financial condition is such that . Such representatives have not, however, rendered any investment advice to the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and suitability of an investment in the WarrantsShares.
(e) The Shares and for which the Warrants are being undersigned hereby subscribes will be acquired for the undersigned's ’s own account account, for investment, investment only and not with no intention of distributing a view toward resale or selling any portion thereof within distribution in a manner which would require registration under the meaning of the Securities Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is has been made aware by the Corporation that his, her or its rights to transfer investment in the shares of Shares of the Corporation involves a high degree of risk and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent possible loss of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisiontotal amount invested.
(g) The undersigned recognizes that the Corporation has little financial received and operating history and the investment in the Shares and the Warrants is speculative and involves reviewed a high degree of risk of loss copy of the entire investment in Term Sheet and related Risk Factors that provide certain information about the Corporation. The undersigned has taken full cognizance of and understands all of , the risk factors related to the purchase offering of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" significant risks attendant to an investment in the Offering Memorandum of the Corporation dated January 21, 2004Shares.
(h) The undersigned acknowledges and is aware that neither the Corporation nor any representative of the following:Corporation has made any representations or warranties in respect of the Corporation business, including, without limitation the value of the Valera Agreement (as defined below) or the right to receive royalty payments thereunder, or any representation regarding Indevus Pharmaceuticals, Inc. (“Indevus”), its subsidiary, Valera Pharmaceuticals, Inc. (“Valera”) or their respective business and products. The undersigned acknowledges and agrees that the value of the Shares is directly correlated to and dependent upon the receipt of distributions by the Corporation from Hydron Royalty Partnership Ltd., LLLP, a limited liability partnership (the “Partnership”), of which it holds a 50.001% partnership interest and serves as general partner, pursuant to the terms of the Limited Liability Limited Partnership Agreement of the Partnership (the “Partnership Agreement”) derived from payments that may be paid to the Partnership from time to time pursuant to the terms of that certain agreement (the “Valera Agreement”) originally between GP Strategies Corporation (f/k/a National Patent Development Corporation) and the Corporation, then known as Dento-Med Industries, Inc. The Valera Agreement is a cross-licensing agreement that requires the payment of royalties by the Corporation and Valera in an amount equal to 5% of net sales of certain products produced by the other party with the use of the Hydron polymer.
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated acknowledges that the Corporation will attain has no direct information regarding the likelihood for the successful development and marketing of products for which royalty payments may be made to the Corporation, other than publicly available information disseminated by Indevus and Valera on their website (▇▇▇.▇▇▇▇▇▇▇.▇▇▇) and in reports filed by Indevus with the Securities and Exchange Commission (▇▇▇.▇▇▇.▇▇▇) for which the Corporation disavows any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;responsibility.
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vij) The undersigned is acknowledges that dividends with respect to the Shares shall be payable only to the extent of distributions made by Partnership and that a resident portion of up to five percent (5%) of the State net amount of up to any such distributions may be reserved and used for general operating and administrative expenses of the Corporation.
(k) The undersigned, if a corporation, partnership, trust or other form of business entity, is authorized and otherwise duly qualified to purchase and hold the subscribed for Shares. Such entity has its principal place of business as set forth on the signature page heretohereof and if such entity has been formed for the specific purpose of acquiring the Shares subscribed to hereunder, it hereby agrees to supply any additional written information that may be required by the Corporation.
(il) The foregoing representations All of the information that the undersigned has heretofore furnished or which is set forth in Paragraph 7 and warranties, and all other statements contained elsewhere in this Subscription Agreement, are true including without limitation, those with respect to the undersigned’s financial position and accurate business status is correct and complete as of the date of this date and shall survive Subscription Agreement. In the event that there is a material change in such date. If in any respect such representations and warranties or statements shall not be true and accurate information prior to the Corporation's acceptance of time the Shares are sold to the Subscriber pursuant to this subscriptionSubscription Agreement, the undersigned shall give immediate written notice of such fact will immediately furnish the revised or corrected information to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby ------------------------------------------------- represents and warrants to the Corporation Company as follows:
(a) The Corporation undersigned can bear the economic risk of this investment and can afford a complete loss thereof. The undersigned (i) has made available all information which sufficient liquid assets to pay the undersigned full purchase price for the Stock, (ii) has requested in connection with adequate means of providing for the purchase undersigned's current and presently foreseeable, future financing needs, (iii) has no present need for liquidity of the Shares and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the CorporationStock, and (iv) has ample liquid resources.
(b) The undersigned has qualifies as an "Accredited Investor" as defined in Rule 501 of Regulation D, promulgated under the Securities Act of 1933, as amended (the "Act").
(c) The undersigned and such other persons as the undersigned found it necessary or advisable to consult, have sufficient knowledge and experience in business and financial and business matters that to evaluate the undersigned is capable of evaluating the merits and risks of acquisition of the Shares this investment and the Warrants and of making to make an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that undersigned had the undersigned is able opportunity to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needsask questions of, and has adequate means for providing for current financial needs to receive answers from, the Company and personal contingencies and has no need for liquidity of investment its representatives, with respect to the Shares Company and the Warrantsterms and conditions of this offering. The undersigned and the undersigned's representatives, if any, have been offered access to the books and records of the Company. All materials and information requested by the undersigned and the undersigned's representatives, if any, including any information requested to verify any information furnished, have been made available to the undersigned.
(e) The Shares and undersigned understands that the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of Stock has not been registered under the Act, and will not be transferred by him, her or it in violation nor pursuant to the provisions of the Act securities or the then other laws of any other applicable rules or regulations thereunderjurisdiction.
(f) The undersigned is aware that his, her or its rights to transfer making the Shares investment hereunder for the undersigned's own account and not for the Warrants are restricted by the Act account of others and applicable state securities laws, that the Warrants are for investment purposes only and not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring a view to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, distribution or any applicable Bylaw or contract provisionresale thereof.
(g) The undersigned recognizes acknowledges that the Corporation has little financial and operating history and certificates for the investment in Stock which the Shares and the Warrants is speculative and involves undersigned will receive shall contain a high degree of risk of loss of the entire investment in the Corporationlegend substantially as follows: THE SECURITIES WHICH ARE REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the WarrantsTHE SECURITIES MAY NOT BE SOLD, includingTRANSFERRED, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004OR OTHERWISE DISPOSED OF IN THE ABSENCE OF EITHER A REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE ACT.
(h) The undersigned acknowledges and is aware represents that the funds provided for this investment are either separate property of the following:
(i) The Shares and the Warrants will not beundersigned, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and community property over which the undersigned has not relied upon any such statement made by anyone in the making right of this investment;
(iv) No general advertising control, or solicitation are otherwise funds as to which the undersigned has been employed by the Corporation in connection with the sale sole right of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretomanagement.
(i) The undersigned understands the meaning and legal consequences of the foregoing representations and warranties, . Each such representation and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and warranty shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance purchase of this subscription, the undersigned shall give immediate written notice of such fact to Stock by the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforundersigned.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents makes the following representations and warrants warranties to the Corporation Company, and the undersigned agrees to indemnify, hold harmless, and pay all judgments of the claims against the Company for any liability or injury, including, but not limited to, that arising under federal or state securities laws, incurred as follows:a result of any misrepresentation herein or any warranties made by the undersigned.
(a) The Corporation has made undersigned is the sole and true party in interest and is not purchasing for the benefit of any other person;
(b) The undersigned understands that all books, records, and documents of the Company relating to this investment have been and remain available all information which for inspection by the undersigned has upon reasonable notice. The undersigned confirms that all documents requested in connection with by the purchase of the Shares undersigned have been made available, and the Warrants and that the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; supplied with all of the additional information so requested concerning this investment that has been providedrequested. The undersigned confirms that he has obtained sufficient information, and the undersigned requires no additional information in his judgment or that of his independent purchaser representative, if any, to evaluate the merits and risks of an investment this investment. The undersigned confirms that he has had the opportunity to obtain such independent legal and tax advice and financial planning services as the undersigned has deemed appropriate prior to making a decision to subscribe for Preferred Stock. In making a decision to purchase Preferred Stock, the undersigned has relied exclusively upon his experience and judgment, or that of his purchaser representative, if any, upon such independent investigations as he, or they, deemed appropriate, and upon information provided by the Company in writing or found in the Corporation.books, records, or documents of the Company;
(bc) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating an evaluation of the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.investment;
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the an investment in the Shares and the Warrants Preferred Stock is highly speculative and involves a subject to substantial risks. The undersigned is capable of bearing the high degree of economic risk and burdens of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrantsthis venture, including, but not limited to, those set forth the possibility of a complete loss, the lack of a sustained and orderly public market, and limited transferability of the Preferred Stock, which may make the liquidation of this investment impossible for the indefinite future;
(e) The offer to settle the Company's debt by exchanging debt for equity was directly communicated to the undersigned by such a manner that the undersigned, or its purchaser representative, if any, was able to ask questions of and receive answers from the Company or a person acting on its behalf concerning the terms and conditions of this transaction. At no time, except in connection and concurrently with such communicated offer, was the undersigned presented with or solicited by or through any leaflet, public promotional meeting, television advertisement, or any other form of general advertising;
(f) The Preferred Stock is being acquired solely for the undersigned's own account, for investment, and is not being purchased with a view to resale, distribution, subdivision, or fractionalization thereof;
(g) The undersigned understands that the Preferred Stock has not been registered under the caption Securities Act of 1933, as amended (the "Risk Factors" Securities Act"), or any state securities laws, in reliance upon exemptions from regulation for non-public offerings. The undersigned understands that the Offering Memorandum Preferred Stock or any interest therein may not be, and agrees that the Preferred Stock or any interest therein will not be, resold or otherwise disposed of by the Corporation dated January 21, 2004.undersigned unless the Preferred Stock are subsequently registered under the Securities Act and under appropriate state securities laws or unless the Company receives an opinion of counsel satisfactory to it that an exemption from registration is available;
(h) The undersigned acknowledges has been informed of and is aware of understands the following:
(i1) The Shares and There are substantial restrictions on the Warrants will not be, and investors in transferability of the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the CorporationPreferred Stock;
(ii2) No federal or state or federal agency has made any finding or determination as to the fairness for public investment, nor any recommendation nor endorsement, of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the WarrantsPreferred Stock;
(iiii) Neither None of the Corporation nor following information has ever been represented, guaranteed, or warranted to the undersigned, expressly or by implication by any broker, the Company, any agent or employee of the Company, or by any other person:
(1) The approximate or exact length of time that the undersigned will be required to remain as a holder of the Preferred Stock;
(2) The amount of consideration, profit, or loss to be realized, if any, as a result of an investment in the Company;
(3) That the past performance or experience of the Company, its officers, directors, employeesassociates, agents agents, affiliates, or advisors employees or others have, any other person will in any way indicate or predict economic results in connection with the plan of operations of the Company or the return on the investment;
(j) The undersigned has not distributed any information relating to this investmentinvestment to anyone other than his purchaser representative, indicated that the Corporation will attain any specified level of profit or loss at any timeif any, and no other person except such personal representative and the undersigned has not relied upon any such statement made by anyone in the making of used this investmentinformation;
(ivk) No general advertising The undersigned hereby agrees to indemnify the Company and to hold it harmless from and against any and all liability, damage, cost, or solicitation has been employed by expense, including its attorneys' fees and costs, incurred on account of or arising out of:
(1) Any material inaccuracy in the Corporation in connection with the sale of the Shares declarations, representations, and the Warrants hereby offered by the Corporationwarranties hereinabove set forth;
(v2) The relative rights, designations, limitations and preferences disposition of the Shares and Preferred Stock or any part thereof by the Warrants are as set forth in the Corporation's Articles of Incorporationundersigned, as amended, a copy of which has been previously provided contrary to the undersigned; andforegoing declarations, representations, and warranties;
(vi3) The undersigned is a resident of the State set forth on the signature page hereto.Any action, suit, or proceeding based upon:
(i) The foregoing representations and warrantiesthe claim that said declarations, and all other statements contained elsewhere in this Agreementrepresentations, are true and accurate as or warranties were inaccurate or misleading or otherwise cause for obtaining damages or redress from the Company; or
(ii) the disposition of this date and shall survive such date. If in the Preferred Stock or any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforpart thereof.
Appears in 1 contract
Sources: Subscription Agreement (Paramco Financial Group Inc)
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(A) The undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
(B) The undersigned represents that he (or she or it) has assets in excess of $10,000,000 in the case of institutions, or net worth in excess of $5,000,000 or annual income exceeding $1,000,000 in the case of individuals.
(C) The Company has not made any representations or warranties to the undersigned with respect to the Company except as contained herein or included in the Company's public information filed with the Securities and Exchange Commission.
(D) The undersigned represents that he is a highly sophisticated investor and has substantial knowledge and experience in financial, investment and business matters so that he is capable of evaluating the merits and risks of the prospective investment in the securities of the Company. The undersigned has consulted with such independent legal counsel or other advisers as he has deemed appropriate to assist the undersigned in evaluating his proposed investment in the Company.
(E) The undersigned represents that he (i) has adequate means of providing for his current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Company; (ii) can afford (a) The Corporation has made available all information which the undersigned has requested in connection with the purchase to hold unregistered securities for an indefinite period of time and (b) sustain a complete loss of the Shares entire amount of the subscription; and the Warrants and the (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has been afforded an the opportunity to ask questions of of, and receive answers from the Corporation officers and/or directors of the Company acting on its behalf concerning the terms and conditions of the purchase of the Shares this transaction and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been provided, and availed himself of such opportunity to the undersigned requires no additional information extent he considers appropriate in order to permit him to evaluate the merits and risks of an investment in the CorporationCompany. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cG) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at Units and the direction underlying securities have not been registered under the Securities Act of 1933 (the "Act") in reliance on an exemption for transactions by an issuer in an offshore transaction as defined in SEC Rule 902(h) that is exempt from the registration requirements of Section 5 of the Board of Directors Act pursuant to the safe harbor provided by SEC Regulation S. With respect to that exemption, the Undersigned further represents and warrants to the Company that:
(1) The Undersigned is not a U.S. Person as defined in SEC Rule 902(k).
(2) The offer to sell the Shares to the Undersigned was not made in the United States, and was made in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
(3) The Undersigned's buy order for the Shares was made outside the United States, and was made in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
(4) The Undersigned has complied with all of the Corporation conditions required of it by SEC Rule 903(b)(3).
(5) At no time was the undersigned presented with or solicited by or through any leaflet, public promotional meeting, television advertising or any other form of general solicitation or advertising, or any solicitation in the United States.
(H) The undersigned further acknowledges that this offering has not been passed upon or the merits thereof endorsed or approved by any state or federal authorities.
(I) The Units and hethe underlying securities being subscribed for are being acquired solely for the account of the undersigned for personal investment and not with a view to, she or it for resale in connection with, any distribution except as may be permitted by federal and state securities laws. By such representation, the undersigned means that no other person has received a beneficial interest in the Units or underlying securities subscribed for hereunder, and that no representation from other person has furnished or will furnish directly or indirectly, any part of or guarantee the Corporation's counsel about payment of any part of the personal tax consequences of this Agreementconsideration to be paid to the Company in connection therewith. The undersigned has relied upon his, her does not intend to dispose of all or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase any part of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel Units or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved underlying securities except in compliance with the investment in the Shares and the Warrants, and the suitability provisions of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, and understands that the Warrants Units are not transferable without prior consent being offered pursuant to a specific exemption under the provisions of the CorporationAct, which exemption(s) depends, among other things, upon the compliance with the provisions of the Act.
(J) The undersigned further represents and agrees that the undersigned will not offer for salesell, sell transfer, pledge or otherwise transfer dispose of or encumber the Shares Units or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring underlying securities except pursuant to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws applicable rules and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered regulations under the Act or the Securities Exchange Act of 1934, as amendedapplicable state securities laws, and prior to any such sale, transfer, pledge, disposition or encumbrance, the undersigned may have will, upon request, furnish the Company and its transfer agent with an opinion of counsel satisfactory to hold the Shares Company in form and substance that registration under the Warrants indefinitely, Act and it may any applicable state securities laws is not be possible for the undersigned to liquidate the investment in the Corporation;required.
(iiK) No state The undersigned hereby agrees that the Company may insert the following or federal agency has made any finding or determination as to similar legend on the fairness face of the terms certificates evidencing shares of Common Stock, underlying the Notes if required in compliance with the Act or state securities laws: "THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES ARE BEING OFFERED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SECURITIES ARE "RESTRICTED" AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE ACT) UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, PURSUANT TO REGULATION S OR PURSUANT TO AVAILABLE EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND THE SELLER WILL BE PROVIDED WITH OPINION OF COUNSEL OR OTHER SUCH INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH EXEMPTIONS ARE AVAILABLE. FURTHER HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE ACT."
(L) The undersigned will not engage in any hedging transactions as precluded by Regulation S under the Act. The undersigned certifies that each of the offering foregoing representations and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsections (A) through (L) inclusive of Incorporation, this Section 3 are true as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation as followsCompany:
(a) The Corporation has made available all information which If the undersigned is acting on behalf of another person, the undersigned has requested all right and authority, in connection with the purchase undersigned’s capacity as an officer, general partner, member, trustee, executor or other representative of such person to make such decision to invest in the Shares and the Warrants to execute and deliver this Subscription Agreement on behalf of such person, and this Subscription Agreement has been duly authorized, executed and delivered on behalf of the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms constitutes a valid and conditions binding agreement of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been providedundersigned, and the undersigned requires no additional information to evaluate the merits and risks of an investment enforceable against it in the Corporationaccordance with its terms.
(b) The undersigned has such knowledge and experience in financial and business matters that If the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; purchasing in a fiduciary capacity, the undersigned has reviewed all due authority to execute the attached signature page and thereby legally to bind the trust or other entity of which the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrantsundersigned is trustee, legal representative or authorized agent.
(c) The undersigned acknowledges that has received and had the Corporation's counsel has prepared this Agreement at the direction opportunity to review a copy of the Board of Directors of Prospectus. Other than the Corporation and he, she or it has received no representation from information contained in the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. FurthermoreProspectus, the undersigned has obtained, to not relied on any information provided by the extent he, she Company or it deems necessary, any affiliate thereof in connection with the undersigned's own professional advice ’s investment decision (including without limitation with respect to the risks tax or other economic considerations involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsthis investment).
(d) The undersigned's financial condition is such that If the undersigned is able to bear the risk of holding the Shares and the Warrants a private investment fund relying on Section 3(c)(1) or 3(c)(7) for an indefinite period exclusion from the definition of time and investment company under the risk 1940 Act, the acquisition of loss securities in this offering by the undersigned shall not cause the undersigned to own after such acquisition, together with any entities it controls (i.e., an entity of which it owns more than 25% of such other company's voting securities), more than three percent (3%) of the entire investment in outstanding voting securities of the Corporation. The undersigned believes Company, assuming that a total of 19,992,517 voting securities of the investment in Company, which consists of 15,452,797 shares of the Shares and the Warrants is suitable for himCompany’s common stock, her or is based upon his, her or its investment objectives and financial needspar value $0.01 per share, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity 4,539,720 shares of investment with respect the Company’s term preferred stock, par value $0.01 per share, will be outstanding on the date of such acquisition before giving effect to the Shares and the Warrantssuch acquisition.
(e) The Shares undersigned hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of such efforts, the undersigned hereby represents, warrants and agrees that to the best of the undersigned’s knowledge, based upon reasonable diligence and investigation, no consideration that the undersigned has contributed or will contribute to the Company has been or shall be derived from, or related to, any activity that is in contravention of any federal, state or international laws and regulations, including anti-money laundering laws and regulations. The undersigned hereby represents that neither it nor any of its owners or affiliates is a person or entity named on a list maintained by the Office of Foreign Asset Control (“OFAC”) of the U.S. Department of the Treasury, nor is the undersigned or any of its owners or affiliates a person or entity with whom dealings are prohibited under any OFAC regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the Warrants are being acquired for provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities, including without limitation the undersigned's own account for investmentSpecially Designated Nationals and Blocked Nations List, can be found on the OFAC website at <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/ofac>. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with no intention individuals[1] or entities in certain countries regardless of distributing whether such individuals or selling any portion thereof within entities appear on the meaning of the ActOFAC lists. 1 These individuals include specially designated nationals, specially designated narcotics traffickers and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunderother parties subject to OFAC sanctions and embargo programs.
(f) The To the best of the undersigned’s knowledge, and except as described in a letter to the Company delivered in conjunction with this Subscription Agreement, none of (a) the undersigned, (b) any person controlling or controlled by the undersigned, (c) if the undersigned is aware that hisa privately-held entity, her any person having a beneficial interest in the undersigned or its rights to transfer (d) any person for whom the Shares and undersigned is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on an OFAC list, or a person or entity prohibited under the Warrants are restricted by the Act and applicable state securities laws, OFAC Programs. Please be advised that the Warrants are Company may not transferable without prior consent of accept any amounts from a subscriber if such subscriber cannot make the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer representation set forth in the Corporation's Articles preceding sentence. The undersigned agrees to promptly notify the Company should the undersigned become aware of Incorporationany change in the information set forth in these representations. The undersigned understands and acknowledges that, as amendedby law, or the Company may be obligated to “freeze the account” of the undersigned, including without limitation by prohibiting additional subscriptions from the undersigned, declining any applicable Bylaw or contract provisionredemption requests and segregating assets in the account in compliance with governmental regulations, and the Company may also be required to report such action and to disclose the undersigned’s identity to OFAC.
(g) The undersigned recognizes understands and agrees that the Corporation has little financial and operating history and the investment in the Shares and the Warrants if at any time it is speculative and involves a high degree of risk of loss discovered that any of the entire investment foregoing representations set forth in Sections 4(e) and (f) above are incorrect, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the CorporationCompany may, in its sole discretion, undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to freezing, segregating or requiring the undersigned to sell such undersigned’s Shares. The undersigned has taken full cognizance of and understands all of the risk factors related agrees to provide to the purchase of Company any additional information regarding the Shares undersigned that the Company deems necessary or appropriate to ensure compliance with all laws and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" regulations concerning money laundering and similar activities that may apply now or in the Offering Memorandum of the Corporation dated January 21, 2004future.
(h) The undersigned acknowledges and is aware To the best of the following:undersigned’s knowledge, none of (a) the undersigned, (b) any person controlling or controlled by the undersigned, (c) if the undersigned is a privately-held entity, any person having a beneficial interest in the undersigned or (d) any person for whom the undersigned is acting as agent or nominee in connection with this investment is a senior foreign political figure2, or any immediate family3 member or close associate4 of a senior foreign political figure, as such terms are defined in the footnotes below.
2 A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. 3 “Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children and in-laws.
4 A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.
(i) If the undersigned is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the undersigned receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the undersigned represents and warrants to the Company that (a) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, (b) the Foreign Bank maintains operating records related to its banking activities, (c) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities and (d) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate.
(j) The Shares undersigned acknowledges that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), the Company is required to obtain, verify and record information that identifies the Warrants undersigned, which information includes the name and address of the undersigned and other information that will not beallow the Company to identify the undersigned in accordance with the Patriot Act. Accordingly, the Company may request information from the undersigned that will help the Company to identify the undersigned (and investors in the Corporation have no rights case of subscribers that are entities, the undersigned’s beneficial owners), including without limitation the Company’s physical address, tax identification number, organizational documents, certificate of good standing, license to require do business, or any other information that the Shares Company deems necessary. The undersigned agrees to provide to the Company any additional information regarding the undersigned that the Company deems necessary or appropriate to ensure compliance with the Patriot Act, or any successor law, whether now or in the future.
(k) Except as set forth in this Subscription Agreement, no representations or warranties have been made to the undersigned by the Company, or any director, officer, employee, agent or affiliate of any of them.
(l) The undersigned is not an affiliate of the Company and the Warrants beis not an underwriter, registered under the Act or as defined in Section 2(a)(11) of the Securities Exchange Act of 19341933, as amended, with respect to the Shares.
(m) The undersigned, if a natural person, has accurately set forth his, her or its state or country of residence on the signature pages hereto where indicated. The undersigned, if a corporation, partnership, trust or other entity, has accurately set forth such undersigned’s jurisdiction of organization on the signature pages hereto where indicated.
(n) The undersigned is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies. The undersigned understands that nothing in this Subscription Agreement or any other materials made available to the undersigned may have to hold in connection with the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering purchase and sale of the Shares constitutes legal, tax or investment advice. The undersigned has consulted such legal, tax and the Warrantsinvestment advisors as it, nor in its sole discretion, has any state deemed necessary or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, appropriate in connection with this investment, indicated that the Corporation will attain any specified level its purchase of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoShares.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned's entire investment;
(ii) the undersigned is acquiring the Shares for its own account and not with a view to, or for resale in connection with, a distribution of the Shares, in violation of the Securities Act of 1933, as amended (the "Securities Act");
(iii) the undersigned's overall commitments to investments that are not readily marketable is not disproportionate to the undersigned's net worth and the undersigned's investment in the Shares will not cause such overall commitments to become excessive;
(iv) the undersigned's financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Shares to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned's current needs and personal contingencies and has no need for liquidity in connection with the purchase undersigned's investment in the Shares; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the Shares signature page of this Subscription Agreement is the undersigned's true and the Warrants correct principal office, and the undersigned has been afforded no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an opportunity to ask questions "accredited investor" as that term is defined in Rule 501 of and receive answers from Regulation D, as promulgated under the Corporation concerning Securities Act because the terms and conditions undersigned meets one of the purchase following criteria (if the undersigned is not an "accredited investor", place an "X" in the following blank: _____):
(i) An individual with a net worth, individually or jointly with the undersigned's spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the Shares and two most recent years, or joint income with the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy undersigned's spouse in excess of information otherwise furnished by the Corporation; all $300,000 in each of the information so requested has been providedthose years, and the undersigned requires no has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the Securities Act; or
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Shares that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has reviewed the Memorandum together with the following documents: (a) the Company's Annual Report on Form 10-KSB for the fiscal year ended August 31, 2004; (b) the Company's Quarterly Reports on Form 10-Q for the periods ended November 30, 2004, February 28, 2005 and May 31, 2005, respectively; (c) the Company's Proxy Statement on Schedule 14A, as amended, relating to the Company's Annual Meeting of Stockholders on August 8, 2005; (d) the Company's Current Reports on Form 8-K filed with the Securities Exchange Commission (the "SEC") on December 9, 2004, January 14, 2005, March 22, 2005, April 18, 2005, June 14, 2005, July 20, 2005, and September 6, 2005, respectively; and (e) any other documents included with the Memorandum, and the undersigned has had the opportunity to discuss the acquisition of the Shares with the Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, has had periods when it has incurred negative cash flow, and has had periods when it has not operated at a profit; and the Company has not concurrently, and may not in the future, receive additional investment funds. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and capitalization of the Company; is cognizant of the intended use of proceeds from this financing; and has available full information concerning the Company's affairs to evaluate the merits and risks of an investment in the CorporationShares.
(be) The undersigned has such knowledge had the opportunity to ask questions of, and experience in financial and business matters that receive answers from, the undersigned is capable of evaluating Company concerning the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks terms of an investment in the Shares and to receive additional information necessary to verify the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction accuracy of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel information delivered to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but has not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, been registered under the Securities Act or the Securities Exchange Act of 1934, as amended, any state securities laws in reliance on an exemption for private offerings and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No no U.S. federal or state or federal agency has made any finding or determination as to the fairness of the terms this investment or any recommendation or endorsement of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;Shares.
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vig) The undersigned is a resident acknowledges that, in making the decision to purchase the Shares, it has relied solely upon independent investigations made by it.
(h) The undersigned has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the State set forth on the signature page heretoundersigned.
(i) The undersigned represents that an investment in the Shares is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Shares subscribed to by the undersigned: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ARE `RESTRICTED SECURITIES' AS THAT TERM IS DEFINED IN RULE 144 UNDER THE SECURITIES ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY THROUGH REASONABLE MEANS AS DETERMINED BY THE COMPANY, INCLUDING AN OPINION OF SELLER'S COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY."
(k) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares constitute a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned's total investment.
(ii) There are substantial restrictions on the transferability of the Shares. The Shares cannot be transferred, pledged, hypothecated, sold or otherwise disposed of unless they are registered under the Securities Act, or an exemption from such registration is available and established to the satisfaction of the Company. The undersigned's registration rights with respect to the Shares are as provided in Section 3 below.
(l) The undersigned understands and agrees that the Company is relying upon the accuracy, completeness and truth of the undersigned's representations, warranties, agreements and certifications contained in this Subscription Agreement, in determining the undersigned's suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate or untruthful response, or the breach of the undersigned's representations, warranties, agreements or certifications, may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 5 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations the delivery of the subscription amount and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Pyr Energy Corp)
Representations and Warranties of the Undersigned. The undersigned makes the following representations and warranties, together with the representations made by the undersigned in the Purchaser Questionnaire attached hereto (which representations are incorporated herein by this reference), with the intent that they be relied upon by the Company and its counsel, officers, directors, employees and agents in determining the undersigned's suitability as a purchaser of the Units. The undersigned hereby agrees that such representations and warranties shall survive his/her purchase of the Units. By signing this Agreement, the undersigned represents that he/she has read and warrants to acknowledged the Corporation as follows:representations set forth in this Section 3. If more than one person is signing this Agreement, each representation and warranty made herein shall be a joint and several representation or warranty of each person.
(a) The Corporation undersigned is the sole and true party in interest, is acquiring the Units for his/her own account for investment, is not purchasing the Units subscribed for hereby for the benefit of any other person, and has made available all information which no present intention of holding or managing the Units with others or of selling, distributing or otherwise disposing of any portion of the Units.
(b) The undersigned has consulted with the advisor (the "Purchaser Representative"), if any, named in the Purchaser Questionnaire incorporated herein. The Purchaser Representative, if any, has advised the undersigned as to the merits and risks of the investment in the Units in general and the suitability of the investment for the undersigned in particular. The Purchaser Representative is not, to the best of the undersigned's knowledge, affiliated in any way with the Company or any of the Brokers.
(c) The undersigned (i) is a citizen of the United States, (ii) is, if a natural person, at least 21 years of age and (iii) is a bona fide permanent resident of and is domiciled in the state set forth on the signature page hereof and has requested no present intention of becoming a resident of any other state or jurisdiction.
(d) The undersigned is aware that an investment in the Units is highly speculative and subject to substantial risks. The undersigned has adequate means of providing for his/her current needs and possible contingencies, and is able to bear the high degree of economic risk of this investment, including, but not limited to, the possibility of the complete loss of the undersigned's entire investment and the limited transferability of the Units, which may make the liquidation of this investment impossible for the indefinite future.
(e) The undersigned, or the undersigned together with the Purchaser Representative, if any, have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Units and making an informed investment decision.
(f) The undersigned understands that neither the Units, the Shares, the Warrants nor the Warrant Shares (collectively, the "Securities") will be registered in this Offering under the Securities Act of 1933, as amended (the "1933 Act"), or any state securities laws, in partial reliance upon exemptions from registration for certain private offerings. The undersigned understands and agrees that the Securities, or any interest therein, may not be resold or otherwise disposed of by the undersigned unless such Securities are subsequently registered under the 1933 Act and under all applicable state securities laws or unless the Company receives an opinion of counsel satisfactory to it that an exemption from registration is available.
(g) The undersigned understands that only the Company can take action so as to register the Securities. Nonetheless, the undersigned will have certain limited registration rights to the extent such rights are expressly provided by a registration rights agreement (the "Registration Rights Agreement") executed in connection with this Agreement by the purchase undersigned and the Company. Such registration rights consist of certain "piggyback" rights to obligate the Company to register Shares or Warrant Shares upon request of the Shares holder thereof if the Company otherwise registers securities of the Company, except in specific circumstances set forth in the Registration Rights Agreement.
(h) The undersigned acknowledges and represents that he/she and the Warrants Purchaser Representative, if any, have received and reviewed a copy of the Memorandum and any amendments or supplements thereto, have been given a reasonable opportunity to review all documents, books and records of the Company pertaining to this investment, have been supplied with all additional information concerning the Company and the undersigned Units that has been afforded an requested by the undersigned, have had a reasonable opportunity to ask questions of and receive answers from the Corporation Company or its representatives concerning this investment, and that all such questions have been answered to the terms and conditions full satisfaction of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporationundersigned.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and undersigned has received no representations, written or oral, from the Warrants will not beCompany or its officers, directors, employees, attorneys or agents, other than those contained in the Memorandum or this Agreement. In making his/her decision to purchase the Units, the undersigned has relied solely upon his/her review of the Memorandum, this Agreement, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act independent investigations made by him/her or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness his/her representatives without assistance of the terms of the offering and sale of the Shares and the Warrants, nor has any state Company or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents employees or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;agents.
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vij) The undersigned is a resident understands and agrees that the following restrictions and limitations are applicable to his/her purchases and resales, pledges, hypothecations or other transfers of the State set forth on the signature page hereto.Securities:
(i) The foregoing representations Securities shall not be sold, pledged, hypothecated or otherwise transferred unless registered under the 1933 Act and warrantiesapplicable state securities laws or an exemption from such registration is available;
(ii) Each certificate or other document evidencing or representing Securities shall be stamped or otherwise imprinted with a legend in substantially the following form: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND VARIOUS APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR ASSIGNED OR A SECURITY INTEREST CREATED THEREIN, UNLESS THE PURCHASER, TRANSFEREE, ASSIGNEE, PLEDGEE OR HOLDER OF SUCH SECURITY INTEREST COMPLIES WITH ALL STATE AND FEDERAL SECURITIES LAWS (I.E., SUCH UNITS ARE REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE THEREUNDER) AND UNLESS THE SELLER, TRANSFEROR, ASSIGNOR, PLEDGOR OR GRANTOR OF SUCH SECURITY INTEREST PROVIDES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSACTION CONTEMPLATED WOULD NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS. TRANSFERABILITY OF THE SECURITIES IS THEREFORE LIMITED AND INVESTORS MUST BEAR THE ECONOMIC RISK OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
(k) The undersigned acknowledges and represents that he/she has completed and executed the Purchaser Questionnaire attached hereto and, if applicable, that his/her Purchaser Representative has completed and executed the Purchaser Representative Questionnaire attached hereto and that the information contained in each of such documents is complete and accurate.
(l) The undersigned represents and affirms that if an investment in the Units is being made pursuant to this Agreement by a corporation, partnership, trust or estate,
(i) the decision to invest and the execution and delivery of this Agreement have been duly authorized by such corporation, partnership, trust or estate;
(ii) the person executing this Agreement on behalf of such corporation, partnership, trust or estate has all right and authority, in his/her capacity as an officer, general partner, trustee, executor or other representative of such corporation, partnership, trust or estate, as the case may be, to execute and deliver this Agreement on behalf of such corporation, partnership, trust or estate;
(iii) this Agreement is a valid and binding agreement of such corporation; partnership, trust or estate, as the case may be, enforceable in accordance with its terms; and
(iv) such corporation, partnership, trust or estate was not organized for the specific purpose of acquiring the Units.
(m) The undersigned represents and affirms that if the undersigned is a partnership, it has, prior to commencement of the Offering, made other investments, and this investment in the Company is being participated in by the partners of the undersigned in substantially the same proportions as such other prior investments.
(n) The undersigned represents and affirms that none of the following information has ever been represented, guaranteed or warranted to the undersigned, expressly or by implication, by any person:
(i) the percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if any, as a result of an investment in the Units; or
(ii) the possibility that the past performance or experience on the part of any subsidiary, officer, director, employee, agent or affiliate of the Company might in any way indicate or predict the results of ownership of the Units or the potential success of the Company's operations.
(o) The undersigned represents that he/she has read and considered fully the sections in the Memorandum entitled "INVESTOR SUITABILITY STANDARDS" and "RISK FACTORS AND INVESTMENT CONSIDERATIONS" and understands that (i) any investment in the Units is speculative and is subject to a high degree of risk and (ii) there are substantial restrictions on the transferability of the Securities which may make impossible or impractical the liquidation of an investment in the Units in case of an emergency.
(p) The undersigned (i) acknowledges that the Memorandum, the information contained therein, and all other statements contained elsewhere information concerning the Company delivered to the undersigned in this Agreementconnection with the Offering (collectively, are true and accurate as the "Proprietary Information) constitutes proprietary confidential information of this date and shall survive such date. If in any respect such representations and warranties or statements the Company, (ii) warrants to the Company that he/she shall not be true use, disclose or disseminate the Proprietary Information except for the sole and accurate prior isolated purpose of making an investment decision related to the Corporation's acceptance purchase of this subscriptionthe Units, and (iii) represents and warrants that he/she has not distributed or disseminated, nor will he/she at any time distribute or disseminate, the undersigned shall give immediate written notice Proprietary Information to anyone other than the Purchaser Representative, if any, and other personal advisors of such fact the undersigned, and that the use of the Proprietary Information by the Purchaser Representative and/or any other personal advisor has been, and will at all times, be limited to the Corporation, specifying which representations sole and warranties or statements are not true isolated purpose of evaluating the proposed purchase of the Units by the undersigned.
(q) The undersigned represents and accurate warrants that he/she is aware of and has read the reasons thereforapplicable state securities notices and legends set forth in the forepart of the Memorandum.
Appears in 1 contract
Sources: Subscription Agreement (Sento Corp)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:: Initials Initials
(a) The Corporation has made available all information which (i) the undersigned has requested in connection with can bear the purchase economic risk of losing the Shares and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an undersigned’s entire investment in the Shares of Common Stock;
(ii) the undersigned is acquiring the Shares for investment purposes only and the Warrants.
(c) The Shares must be held by the undersigned acknowledges that without sale, transfer, or other disposition for an indefinite period unless the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase transfer of the Shares subsequently are, registered under the U.S. federal securities laws or unless exemptions from registration are available;
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the ’s investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.will not cause such overall commitments to become excessive;
(div) The the undersigned's ’s financial condition is such that the undersigned is able under no present or contemplated future need to bear the risk dispose of holding any portion of the Shares and to satisfy any existing or contemplated undertaking, need, or indebtedness;
(v) the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for of providing for the undersigned’s current financial needs and personal contingencies and has no need for liquidity in the undersigned’s investment in the Shares;
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate and has evaluated the merits and risks of investment with respect this investment; and
(vii) the undersigned understands that oil and gas ventures carry additional risks unique to the Shares oil and gas industry and that the undersigned has had the opportunity to review the attached offering with qualified energy experts and has been afforded the opportunity to inquire therein.
(b) The address set forth below on the signature page of this Subscription Agreement is the undersigned’s true and correct residence, and the Warrantsundersigned has no present intention of becoming a resident of any other state or jurisdiction.
(c) The undersigned is an “accredited investor” as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933, as amended (the “Securities Act”), because the undersigned meets one of the following criteria (IF THE UNDERSIGNED IS NOT AN “ACCREDITED INVESTOR”, PLACE AN “X” IN THE FOLLOWING BLANK: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned’s spouse in excess of $600,000 in each of those years, and the undersigned has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $3,000,000; or
(v) A trust with total assets in excess of $3,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the Securities Act; or Initials Initials
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Shares that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has (i) had the opportunity to discuss the acquisition of the Shares with the Company, and (ii) obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, and has never operated at a profit; and the Company may not in the future, receive additional investment funds, and the Company will not be able to implement its business plan without additional investment funds. The undersigned further represents the undersigned is cognizant of the operations, financial condition and capitalization of the Company, and has available full information concerning the Company’s affairs to evaluate the merits and risks of the investment in the Shares.
(e) The undersigned has had the opportunity to ask questions of, and receive answers from, the Company concerning the terms of an investment in the Shares and to receive additional information necessary to verify the Warrants are being acquired for accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration have not been registered under the securities laws and to any restriction on transfer set forth in the Corporation's Articles U.S. Securities Act of Incorporation1933, as amendedamended (the “Securities Act”), or any applicable Bylaw state securities laws in reliance on an exemption for private offerings and no U.S. federal or contract provisionstate agency has made any finding or determination as to the fairness of this investment or any recommendation or endorsement of the offering of the Shares.
(g) The Shares for which the undersigned recognizes hereby subscribes for are being and will be acquired solely for the undersigned’s own account, for investment, and is not being purchased with a view to or for the resale, distribution, subdivision, or fractionalization thereof; the undersigned has no agreement or arrangement for any such resale, distribution, subdivision, or fractionalization thereof.
(h) The undersigned acknowledges that, in making the decision to purchase the Shares, it has relied solely upon independent investigations made by the undersigned.
(i) The undersigned has the full right, power, and authority to enter this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid, and binding obligation of the undersigned.
(j) The undersigned represents that the Corporation has little financial and operating history and the an investment in the Shares and is a suitable investment for the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004undersigned.
(hk) The undersigned is not associated with or an affiliate of any member firm of the National Association of Securities Dealers, Inc.
(l) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificates representing the Shares subscribed to by the undersigned: Initials Initials
(m) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares are a speculative investment and involve a high degree of risk of loss by the Warrants will undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Shares. The Shares cannot bebe transferred, pledged, hypothecated, sold, or otherwise disposed of unless it is registered under the Securities Act, or an exemption from such registration is available and established to the satisfaction of the Company; investors in the Corporation Company have no rights right to require that any transfer of the Shares and the Warrants be, be registered under the Securities Act or and the Securities Exchange Act of 1934Company is under no obligation to register the Share; there is a limited public market for the Company’s common stock; and accordingly, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, ; and it may not be possible for the undersigned to liquidate the undersigned’s investment in the Corporation;Company.
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vin) The undersigned understands and agrees that the Company is a resident relying upon the accuracy, completeness, and truth of the State set forth on undersigned’s representations, warranties, agreements, and certifications contained in this Subscription Agreement, in determining the signature page hereto.
(i) undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate, or untruthful response, or the breach of the undersigned’s representations, warranties, agreements, or certifications, may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for these and other losses in accordance with Section 3 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned’s entire Investment in the Shares and Warrants;
(ii) the undersigned is acquiring the Shares and Warrants for its own account and not with a view to, or for resale in connection with, a distribution of the Shares, Warrants or Common Stock underlying the Warrants in violation of the Securities Act of 1933, as amended (the “1933 Act”);
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Shares and Warrants will not cause such overall commitments to become excessive;
(iv) the undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Shares or Warrants to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned’s current needs and personal contingencies and has no need for liquidity in connection the undersigned’s investment in the Shares; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the signature page of this Subscription Agreement is the undersigned’s true and correct principal office, and the undersigned has no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an “accredited investor” as that term is defined in Rule 501 of Regulation D, as promulgated under the 1933 Act because the undersigned meets one of the following criteria (if the undersigned is not an “accredited investor”, place an “X” in the following blank: ___):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned’s spouse in excess of $300,000 in each of those years, and the undersigned has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the 1933 Act; or
(vi) An entity in which all of the equity owners are accredited investors; or
(vii) A bank as defined in section 3(a)(2) of the Act, or a savings and loan association or other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; an insurance company as defined in section 2(a)(13) of the Act; an investment company registered under the Investment Company Act of 1940 or a business development company as defined in section 2(a)(48) of that Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state, its political subdivisions, or an agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; or
(viii) A private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Shares and Warrants that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has had the opportunity to discuss the acquisition of the Shares and Warrants with the Warrants and Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has been afforded requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: (a) the Company has limited financial resources; (b) the Company has not concurrently, and may not in the future, receive additional investment funds; and (c) the Company is involved in an opportunity to ask questions extremely competitive industry and has no assurance of success. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and receive answers capitalization of the Company, is cognizant of the intended use of proceeds from the Corporation this financing, and has available full information concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information Company’s affairs to evaluate the merits and risks of an investment in the CorporationShares and Warrants.
(be) The undersigned has such knowledge had the opportunity to ask questions of, and experience in financial and business matters that receive answers from, the undersigned is capable of evaluating Company concerning the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks terms of an investment in the Shares and Warrants and to receive additional information necessary to verify the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction accuracy of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel information delivered to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing issuance of the Shares Shares, the Warrants and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and Common Stock underlying the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but have not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, been registered under the 1933 Act or the Securities Exchange Act of 1934, as amended, any state securities laws in reliance on an exemption for private offerings and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No no U.S. federal or state or federal agency has made any finding or determination as to the fairness of the terms this investment or any recommendation or endorsement of the offering and sale of the Shares, the Warrants or the Common Stock underlying the Warrants.
(g) The undersigned acknowledges that, in making the decision to purchase the Shares and the Warrants, nor it has any state or federal agency recommended or endorsed the Shares or the Warrants;relied solely upon independent investigations made by it.
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vih) The undersigned is a resident has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the State set forth on the signature page heretoundersigned.
(i) The undersigned represents that an investment in the Shares and Warrants is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Shares, the Warrants and the Common Stock underlying the Warrants: “THE SECURITIES REPRESENTED BY THIS DOCUMENT HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND ARE ‘RESTRICTED SECURITIES’ AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY THROUGH REASONABLE MEANS AS DETERMINED BY THE COMPANY, INCLUDING AN OPINION OF SELLER’S COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY.”
(k) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares and Warrants constitute a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Shares, the Warrants and the Common Stock underlying the Warrants..
(l) The undersigned understands and agrees that the Company is relying upon the accuracy, completeness, and truth of the undersigned’s representations, warranties, agreements, and certifications contained in this Subscription Agreement, in determining the undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate, or untruthful response, or the breach of the undersigned’s representations, warranties, agreements, or certifications may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 3 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription Agreement (Silicon Mountain Holdings, Inc.)
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(aA) The Corporation undersigned has sufficient liquid assets to sustain a loss of the undersigned’s entire investment.
(B) The undersigned represents that he, she or it is an “Accredited Investor” as that term is defined in Regulation D promulgated under the Act. In general, an “Accredited Investor” is deemed to be an institution with assets in excess of $5,000,000 or individuals with net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with their spouse.
(C) The Company has not made available all information which any other representations or warranties to the undersigned with respect to the Company except as contained herein. The Company has requested not rendered any investment advice to the undersigned with respect to the Company.
(D) The undersigned has not authorized any person or institution to act as his, her or its Purchaser Representative (as that term is defined in Regulation D of the General Rules and Regulations under the Act) in connection with this transaction. The undersigned has such knowledge and experience in financial, investment and business matters that he, she or it is capable of evaluating the purchase merits and risks of the Shares and prospective investment in the Warrants and Securities. The undersigned has consulted with such independent legal counsel or other advisers as he, she or it has deemed appropriate to assist the undersigned in evaluating his, her or its proposed investment in the Securities.
(E) The undersigned understands that the Securities involve a high degree of risk and represents that he, she or it (i) has adequate means of providing for his current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Securities; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has carefully reviewed the Company’s SEC Reports (as defined below). The undersigned has also been afforded an the opportunity to ask questions of of, and receive answers from from, the Corporation officers and/or directors of the Company concerning the terms and conditions of the purchase of the Shares Offering and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been providedavailed himself of such opportunity to the extent he, and the undersigned requires no additional information she or it considers appropriate in order to permit him, her or it to evaluate the merits and risks of an investment in the CorporationSecurities. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cG) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at Securities have not been registered under the direction Act in reliance on an exemption for transactions by an issuer not involving a public offering, and further understands that the undersigned is purchasing the Securities without being furnished any prospectus setting forth all of the Board of Directors of information that would be required to be furnished under the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this AgreementAct. The undersigned has relied upon hisfurther acknowledges that the Securities are “restricted securities” which may not be sold, her offered for sale, pledged or its own legal and tax counsel to hypothecated in the extent he, she or it deems necessary as to all matters and questions concerning the purchase absence of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice a registration statement in effect with respect to the risks involved with Securities under the investment in Act or pursuant to a valid exemption under the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsAct.
(dH) The undersigned's financial condition is such undersigned further acknowledges that this Offering has not been passed upon or the merits thereof endorsed or approved by any state or federal authorities.
(I) The Securities being subscribed for are being acquired solely for the account of the undersigned is able to bear and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the risk undersigned means that no other person has a beneficial interest in the Securities subscribed for hereunder, and that no other person has furnished or will furnish directly or indirectly, any part of holding or guarantee the Shares and the Warrants for an indefinite period payment of time and the risk of loss any part of the entire investment consideration to be paid to the Company in the Corporationconnection therewith. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her does not intend to dispose of all or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning part of the Act, and will not be transferred by him, her or it Securities except in violation compliance with the provisions of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, laws and understands that the Warrants Securities are not transferable without prior consent being offered pursuant to a specific exemption under the provisions of the CorporationAct, which exemption(s) depends, among other things, upon compliance with the provisions of the Act.
(J) The undersigned further represents and agrees that the undersigned will not offer for sell, transfer or otherwise dispose of or encumber the Securities unless prior to any such sale, sell transfer, disposition or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; encumbrance, the undersigned understands that will, if requested, furnish the certificates representing the Shares Company and the Warrants purchased will bear restrictive legends referring its transfer agent with an opinion of counsel satisfactory to the restrictions on transfer thereof resulting from their issuance without Company in form and substance that registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or applicable state securities laws is not required. Notwithstanding the Securities Exchange Act of 1934foregoing, as amended, and the undersigned may have pledge any or all of the Securities to hold a broker-dealer as collateral for a margin account, without notice to the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;Company.
(iiK) No state or federal agency has made any finding or determination as to The undersigned hereby acknowledges that the fairness of the terms of the offering Company’s officers and sale of the Shares and the Warrantsdirectors, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;their affiliates and/or its beneficial owners will not subscribe for Securities.
(iiiL) Neither the Corporation Company nor any person acting on its behalf has offered or sold the undersigned the Securities by means of its officersany form of general solicitation or general advertising and the Securities were not offered or sold to the undersigned by means of publicly disseminated advertisements or sales literature.
(M) The undersigned represents that during the 30 days prior to the date hereof, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon not, directly or indirectly, made any such statement made by anyone short sales of, or granted any option for the purchase of or entered into any hedging or similar transaction with the same economic effect as a net short sale, in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale Securities. The undersigned certifies that each of the Shares foregoing representations and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsection (A) through (M) inclusive of Incorporation, this Section 4 are true as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth date hereof, on the signature page hereto.
(i) The foregoing representations and warrantiesFinal Closing date, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The To induce BioSante to accept the undersigned's subscription, the undersigned hereby represents and warrants to the Corporation as followsBioSante that:
(a) The Corporation undersigned, if an individual, has made available reached the age of majority in the jurisdiction in which the undersigned resides, is a bona fide resident of the jurisdiction contained in the address set forth on the signature page of this subscription agreement, is legally competent to execute this subscription agreement, and does not intend to change residence to another jurisdiction;
(b) The undersigned, if an entity, was not formed solely for purposes of making this investment and is duly authorized to execute this subscription agreement and this subscription agreement, when executed and delivered by the undersigned, will constitute a legal, valid and binding obligation enforceable against the undersigned in accordance with its terms; and the execution, delivery and performance of this subscription agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate or other necessary action on the part of the undersigned;
(c) The units subscribed for hereby are being acquired by the undersigned for investment purposes only, for the account of the undersigned and not with the view to any resale or distribution thereof, and the undersigned is not participating, directly or indirectly, in a distribution of such units and will not take, or cause to be taken, any action that would cause the undersigned to be deemed an "underwriter" of such units as defined in Section 2(11) of the Securities Act;
(d) The undersigned has had access to all materials, books, records, documents and information relating to BioSante which the undersigned has requested in connection with requested, including the purchase SEC filings, and has been provided the opportunity to verify the accuracy of the Shares information contained therein;
(e) The undersigned acknowledges and understands that investment in the Warrants units involves a high degree of risk, has read and understood the risk factors contained in Annex C attached hereto and in the SEC filings made by BioSante and provided to the undersigned;
(f) The undersigned acknowledges that the undersigned has been afforded offered an opportunity to ask questions of of, and receive answers from the Corporation from, officers of BioSante concerning the terms all material aspects of BioSante and conditions of the purchase of the Shares its business and the Warrants this offering, and concerning the Corporation and the opportunity to obtain that any additional request for such information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and fully complied with to the undersigned requires no additional extent BioSante possesses such information to evaluate the merits and risks of an investment in the Corporation.or can acquire it without unreasonable effort or expense;
(bg) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares BioSante and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction can afford a complete loss of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.BioSante;
(h) The undersigned acknowledges has, in connection with the undersigned's decision to purchase the units, relied solely upon this subscription agreement and is aware of the following:SEC filings;
(i) The Shares undersigned represents and warrants to and covenants with BioSante that the Warrants undersigned has not engaged and will not beengage in any sales of the units, and investors including a short sale covered by the units, prior to the effectiveness of a resale registration statement (as defined in SECTION 6), except to the Corporation have no rights to require extent that any such short sale is fully covered by shares of BioSante's common stock other than the Shares and the Warrants beunits, registered or such sale is otherwise exempt from registration under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the CorporationAct;
(iij) No state or federal The undersigned recognizes that no governmental agency has passed upon the issuance of the units or made any finding or determination as to the fairness of this offering;
(k) If the terms undersigned is purchasing the units subscribed for hereby in a representative or fiduciary capacity, the representations and warranties contained herein shall be deemed to have been made on behalf of the offering and person or persons for whom such units are being purchased;
(l) The undersigned has not entered into any agreement to pay commissions to any persons with respect to the purchase or sale of the Shares and units, except commissions for which the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrantsundersigned will be responsible;
(iiim) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection The undersigned acknowledges that BioSante will pay to Sunrise Securities Corp. a commission with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with respect to the sale of the Shares units by BioSante to the undersigned of (i) 7.0% of the gross sales price of the units sold by BioSante in this offering to investors introduced to BioSante by Sunrise, payable at the option of Sunrise in cash or in units valued at the unit sales prices less the cash commission, and (ii) a five-year warrant to purchase units covering a number of units equal to 7.0% of the total number of units sold by BioSante in this offering to investors introduced to BioSante by Sunrise, inclusive of the commission units, if any, issued to Sunrise at an exercise price of $.625 and the Warrants hereby offered cash commission and five-year warrant will also be payable with respect to (x) all securities subscribed to by bona fide "Accredited Investors" introduced to BioSante by Sunrise who are ready willing and able to close but whose subscriptions are rejected by BioSante other than due to over-subscription, and (y) any purchase of BioSante securities by any investor introduced by Sunrise to BioSante taking place at any time within 12 months, as long as such introduction occurred before the Corporationclosing of this offering;
(vn) The relative rightsundersigned acknowledges and understands that the units, designations, limitations the shares of BioSante common stock and preferences warrants underlying the units and the shares of BioSante common stock issuable upon exercise of the Shares warrants may not be resold or otherwise transferred except in a transaction registered under the Securities Act or unless an exemption from such registration is available. The undersigned understands that the certificate(s) evidencing the units, the shares of BioSante common stock and warrants underlying the units and the Warrants shares of BioSante common stock issuable upon exercise of the warrants will be imprinted with a legend that prohibits the transfer of such shares unless (i) they are registered or such registration is not required, and (ii) if the transfer is pursuant to an exemption from registration other than Rule 144 under the Securities Act and, if BioSante shall so request in writing, an opinion of counsel reasonably satisfactory to BioSante is obtained to the effect that the transaction is so exempt; and
(o) The undersigned is an "accredited investor" within the meaning of Section 501(a) of Regulation D promulgated under the Securities Act. Specifically the undersigned is (check appropriate item(s)): / / a bank as set forth defined in Section 3(a)(2) of the Corporation's Articles Securities Act, or a savings and loan association or other institution as defined in Section 3(a)(5)(A) of Incorporationthe Securities Act whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the Exchange Act; an insurance company as defined in Section 2(13) of the Securities Act; an investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Securities Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) of (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state, its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; any employee benefit plan within the meaning of the Employment Retirement Income Security Act of 1974, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment advisor, or if the employee benefit plan has total assets in excess of $5,000,000, or if a self-directed plan, with investment decisions made solely by persons that are Accredited Investors; / / a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; / / an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring Shares, with total assets in excess of $5,000,000; / / a copy director or executive officer of BioSante; / / a natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his or her purchase exceeds $1,000,000; / / a natural person who had an individual income (not including his or her spouse's income) in excess of $200,000 in 1999 and 2000 or joint income with his or her spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching such income level in 2001; / / a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring Shares, whose purchase is directed by a person having such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks entailed in the purchase of units; or / / an entity in which has been previously provided to the undersigned; and
(vi) The undersigned is a resident all of the State set forth on equity owners are accredited investors, within the signature page hereto.
meaning of Rule 501 under Regulation D of the Securities Act. (i) The foregoing representations and warranties, and all other statements contained elsewhere in If this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscriptionalternative is checked, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations must identify each equity owner and warranties or provide statements are not true and accurate and the reasons thereforsigned by each demonstrating how each is qualified as an accredited investor.)
Appears in 1 contract
Sources: Subscription Agreement (Biosante Pharmaceuticals Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned’s entire investment;
(ii) the undersigned is acquiring the Units for its own account and not with a view to, or for resale in connection with, a distribution of the Units, or of the Common Shares or Warrants included in the Units, in violation of the Securities Act of 1933 (the “1933 Act”);
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Units will not cause such overall commitments to become excessive;
(iv) the undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Units to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned’s current needs and personal contingencies and has no need for liquidity in connection with the purchase undersigned’s investment in the Units; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the Shares signature page of this Subscription Agreement is the undersigned’s true and the Warrants correct principal office, and the undersigned has been afforded no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an opportunity to ask questions “accredited investor” as that term is defined in Rule 501 of and receive answers from Regulation D, as promulgated under the Corporation concerning 1933 Act because the terms and conditions undersigned meets one of the purchase following criteria (if the undersigned is not an “accredited investor”, place an “X” in the following blank: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the Shares and two most recent years, or joint income with the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy undersigned’s spouse in excess of information otherwise furnished by the Corporation; all $300,000 in each of the information so requested has been providedthose years, and the undersigned requires no has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the 1933 Act; or
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Units that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has received and reviewed the Memorandum together with the following documents: (a) Summary of Evaluation of Proved Oil and Gas Reserves effective December 31, 2002 utilizing December 31, 2002 pricing, as prepared by ▇▇▇▇▇▇▇▇▇▇ Petroleum Consultants, Inc; (b) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002; (c) the Company’s Quarterly Reports on Forms 10-Q for each of the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003; (d) the Company’s Proxy Statement on Schedule 14A relating to the Company’s Annual Meeting of Shareholders on May 21, 2003; and (e) any other documents included with the Memorandum, and the undersigned has had the opportunity to discuss the acquisition of the Units with the Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, has had periods when it has incurred negative cash flow, and has had periods when it has not operated at a profit; and the Company has not concurrently, and may not in the future, receive additional investment funds. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and capitalization of the Company; is cognizant of the intended use of proceeds from this financing, and has available full information concerning the Company’s affairs to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsUnits.
(e) The Shares undersigned has had the opportunity to ask questions of, and receive answers from, the Warrants are being acquired for Company concerning the terms of an investment in the Units and to receive additional information necessary to verify the accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing issuance of the Shares Units has not been registered under the 1933 Act or any state securities laws in reliance on an exemption for private offerings and the Warrants purchased will bear restrictive legends referring no U.S. federal or state agency has made any finding or determination as to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles fairness of Incorporation, as amended, this investment or any applicable Bylaw recommendation or contract provisionendorsement of the offering of the Units.
(g) The undersigned recognizes acknowledges that, in making the decision to purchase the Units, it has relied solely upon independent investigations made by it.
(h) The undersigned has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the undersigned.
(i) The undersigned represents that the Corporation has little financial and operating history and the an investment in the Units is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Common Shares and the Warrants is speculative and involves a high degree of risk of loss subscribed to by the undersigned (including those Common Shares exercisable upon exercise of the entire investment in the CorporationWarrants): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND ARE ‘RESTRICTED SECURITIES’ AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the WarrantsTHE SECURITIES MAY NOT BE OFFERED FOR SALE, includingSOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.”
(hk) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares Units and the Warrants will not besecurities included in the Units constitute a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Units. The Units, the Common Shares, the Warrants, and the Common Shares issuable upon exercise of the Warrants cannot be transferred, pledged, hypothecated, sold or otherwise disposed of unless they are registered under the 1933 Act, or an exemption from such registration is available and established to the satisfaction of the Company; except as provided in Section 3 below, investors in the Corporation Offering have no rights to require that any transfer of the Shares and the Warrants be, Units be registered under the Act or 1933 Act; there is a limited public market for the Securities Exchange Act of 1934Company’s common stock; and accordingly, as amended, and the undersigned may have to hold the Shares and the Warrants Units indefinitely, ; and it may not be possible for the undersigned to liquidate the undersigned’s investment in the Corporation;Company.
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vil) The undersigned understands and agrees that the Company is a resident relying upon the accuracy, completeness, and truth of the State set forth on undersigned’s representations, warranties, agreements, and certifications contained in this Subscription Agreement, in determining the signature page hereto.
(i) undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate, or untruthful response, or the breach of the undersigned’s representations, warranties, agreements, or certifications may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 5 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Warren Resources Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(a1) The Corporation has made available all information which the undersigned has requested in connection with can bear the purchase economic risk of losing the undersigned's entire investment;
(2) the undersigned is or will be acquiring the Securities for investment purposes only and the Securities the undersigned is or will be acquiring will be held by the undersigned without sale, transfer or other disposition for an indefinite period unless the transfer of the Shares Securities subsequently is registered under the U.S. federal securities laws or unless exemptions from registration are available;
(3) the undersigned's overall commitments to investments that are not readily marketable is not disproportionate to the undersigned's net worth and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an undersigned's investment in the Corporation.Securities will not cause such overall commitments to become excessive;
(b4) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able under no present or contemplated future need to bear the risk dispose of holding the Shares and the Warrants for an indefinite period of time and the risk of loss any portion of the entire investment in Securities to satisfy any existing or contemplated undertaking, need or indebtedness;
(5) the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for of providing for the undersigned's current financial needs and personal contingencies and has no need for liquidity in the undersigned's investment in the Securities; and
(6) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate and has evaluated the merits and risks of investment with respect to the Shares and the Warrantsthis investment.
(eb) The Shares and address set forth below on the Warrants are being acquired for signature page of this Subscription Agreement is the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, true and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any timecorrect residence, and the undersigned has not relied upon no present intention of becoming a resident of any such statement made by anyone in the making of this investment;other state or jurisdiction.
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vic) The undersigned is a resident an "accredited investor" as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933, as amended (the "1933 Act"), because the Buyer meets one of the State set forth on following criteria (if the signature page hereto.undersigned is not an "accredited investor", place an "X" in the following blank: ):
(i1) The foregoing representations and warrantiesAn individual with a net worth, individually or jointly with the undersigned's spouse, of $1,000,000; or
(2) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned's spouse in excess of $300,000 in each of those years, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice has a reasonable expectation of such fact to reaching the Corporationsame income level in the current year; or
(3) An individual who is an officer or director of the Company; or
(4) A corporation, specifying which representations and warranties Massachusetts or statements are similar business trust, or partnership, not true and accurate and formed for the reasons therefor.specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(5) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Hudson River Investments Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation Company as follows:
: The undersigned has (ai) The Corporation adequate means of providing for the undersigned’s current needs and possible personal contingencies, is able to bear the substantial economic risks of an investment in the Unit(s), has made available all information which no need for liquidity of such investment, and could afford a complete loss of such investment, (ii) satisfied the net worth and/or other suitability standards for an investor as described or referenced under the caption “Suitability Standards” in the Memorandum and any additional suitability standards required by the securities laws of the state of the undersigned’s residence, and (iii) has such knowledge and experience in business, financial and tax matters that the undersigned has requested is capable of evaluating the relative risks and merits of an investment in connection the Unit(s) and to make an informed investment decision with the purchase respect thereto. The undersigned, if an individual, is at least 21 years of age and is not a foreign citizen and is a bona fide resident of the Shares state set forth in the undersigned’s Subscription Documents. The undersigned’s address indicated therein is a true and the Warrants correct residence, and the undersigned has no present intention of becoming a resident of any other state or jurisdiction. The undersigned is not subscribing for the Unit(s) as a result of or subsequent to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television, radio or the internet or presented at any seminar. The undersigned has received, carefully read and is thoroughly familiar with this Agreement, the Subscription Documents, the Memorandum (particularly the Limited Liability Agreement and information set forth under the caption “Risk Factors” in the Memorandum) and all of their respective attachments. With respect to individual or partnership tax and other economic considerations involved in a purchase of Unit(s), the undersigned is not relying on the Company or any agent or representative thereof. The undersigned is aware of the high degree of risk involved in making an investment in the Unit(s); it being understood, however, that this representation does not constitute a waiver of any rights that the undersigned has under the Securities Act of 1933 (the “Securities Act”), any applicable state securities act or the rules and regulations promulgated thereunder. The undersigned has considered and has, to the extent the undersigned believes necessary, discussed with the undersigned’s legal, tax, accounting and financial advisers the suitability of an investment in the Unit(s) given the undersigned’s particular tax, accounting and financial status, and hereby acknowledges that he/she has been afforded advised to consult with such parties prior to entering in to this Agreement. The undersigned acknowledges that no assurances have been made to him by the management regarding the tax consequences, if any, of an investment in Unit(s) in the Company and that the discussion of the tax consequences in the Memorandum is limited and general in nature and that the tax consequences to him will depend on his particular circumstances. The undersigned has had an opportunity to ask questions of and receive answers thereto and to request additional relevant information from the Corporation Company, or a person or persons authorized on its behalf, concerning the terms and conditions of this purchase. The undersigned confirms that all documents, records and books pertaining to the purchase of Unit(s) in the Shares Company and requested by the Warrants undersigned have been made available or delivered to the undersigned prior its subscription. The undersigned further acknowledges that the undersigned is purchasing the Unit(s) in the Company only in reliance upon the information set forth in the Memorandum and concerning the Corporation and the opportunity to obtain any additional written information necessary to verify provided by the Company upon the undersigned’s request. The undersigned understands that the Unit(s) have not been registered under the Securities Act of 1933, as amended, or any state securities law and are instead being offered and sold in reliance on an exemption thereto, which is in part dependent upon the truth, completeness and accuracy of information otherwise furnished the statements made by the Corporation; all undersigned herein and in the Investor Suitability Questionnaire. The undersigned understands that the Unit(s) cannot be sold, pledged hypothecated or transferred unless they are subsequently so registered under the Securities Act of the information so requested 1933, as amended, and applicable state securities law, or an exemption from such registration is available. The undersigned acknowledges that he has been providedadvised that Rule 144 promulgated under the Securities Act is neither applicable nor contemplated to become applicable to the Unit(s) and further acknowledges that neither the Company nor the management will be obligated to make the filings and reports, or make available publicly the information, that is a condition to the availability of Rule 144. The Unit(s) for which the undersigned hereby subscribes are being acquired solely for the undersigned’s own account, for investment, and are not being purchased with a view to, or for resale in connection with, any distribution, subdivision or fractionalization thereof; the undersigned requires has no additional information present plans to evaluate enter into any contract, undertaking, agreement or arrangement with respect to any such resale. In order to induce the Company to issue and sell the Unit(s) subscribed for hereby to the undersigned, it is agreed that the Company will have no obligation to recognize the ownership, beneficial or otherwise, of such Unit(s) by anyone but the undersigned. No other person has any right, title, interest, participation, or claim in or to the Unit(s) for which the undersigned is subscribing, except for any interest his spouse may have under community property laws. If the undersigned employed a purchaser representative in connection with evaluating the merits and risks of an investment in the Corporation.
(bUnit(s), he acknowledges who such person is and that such person is his “purchaser representative” as such term is used in Rule 501(h) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition Regulation D of the Shares Securities and the Warrants Exchange Commission’s Rules and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this AgreementRegulations. The undersigned has relied upon hisreceived, her or its own legal completed and tax counsel returned to the extent he, she or it deems necessary as to all matters and questions concerning Company the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the CorporationSubscription Documents, and the undersigned will not offer for sale, sell or otherwise transfer hereby affirms the Shares or correctness of the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares statements and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth representations contained in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the CorporationSubscription Documents. The undersigned has taken full cognizance acknowledges, consents to, and is aware of and understands all of the risk factors risks related to this investment in Units described in the purchase of the Shares and the WarrantsMemorandum, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares That the Company has a limited operating history and the Warrants will not beUnit(s) are a speculative investment which involves substantial risk of loss of the undersigned’s entire investment in the Company.
(ii) That there are substantial restrictions on the transferability of the Unit(s), and investors in the Corporation have no rights to require that the Shares and the Warrants beaccordingly, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants Unit(s) indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;Company.
(iiiii) No That no federal or state or federal agency has made any finding or determination as to the fairness of the terms offering of the offering and sale Unit(s) for investment or any recommendation or endorsement of the Shares and Unit(s).
(iv) That it never has been represented, guaranteed or warranted to the Warrantsundersigned by the Company, nor has its agents or employees or any state other person, expressly or federal agency recommended by implication, any of the following:
(a) The approximate or endorsed exact length of time that the Shares or undersigned will be required to remain as owner of the WarrantsUnit(s);
(iiib) Neither The percentage of profit and/or amount of or type of return on investment, consideration, profit or loss to be realized, if any, as a result of this investment in Unit(s);
(c) That the Corporation nor prior performance on the part of the Company will in any way indicate the possible result of its officersthe Company; or
(d) That subscriptions will be accepted in the order in which they are received.
(v) That the Company shall incur certain costs, directorsexpenses, employeesand undertake other actions in reliance upon the irrevocability of the subscription for Unit(s) made hereunder. The undersigned, agents is not (i) a “tax exempt entity” within the meaning of Section 168(j)(4)(A) of the Internal Revenue Code of 1986 (the “Code”), Retirement Account, simplified employee plan, endowment fund, foundation or advisors other entity generally exempt from federal income taxation (such as charitable, religious, scientific and educational organizations); (ii) a trust created and administered pursuant to ▇▇▇▇▇ (H.R.10) Plans, a qualified pension or others haveprofit sharing and stock bonus plan which qualifies under Code Section 401(2). The undersigned acknowledges and understands that, if he is a non-U.S. person and purchases the Unit(s), he may be required to file a United States tax return on which he must report income received from his investment in the Unit(s) and may be required to pay United States federal income tax at applicable rates. The undersigned understand that the Company may be required to withhold income tax from amounts paid to the undersigned. If the this Agreement is executed and delivered on behalf of a partnership, company, corporation, trust, estate or other entity: (i) such partnership, company, corporation, trust, estate or entity has the full legal right and power and all authority and approval required (a) to execute and deliver, or authorize execution and delivery of, this Agreement and all other instruments executed and delivered by or on behalf of such partnership, company, corporation, trust, estate or entity in connection with this investmentthe purchase of the Unit(s), indicated that (b) to delegate authority pursuant to a power of attorney and (c) to purchase and hold the Corporation will attain Unit(s), (ii) the signature of the undersigned is binding upon such partnership, company, corporation, trust, estate or entity, and (iii) the subscriber was not organized for the specific purpose of acquiring the Unit(s). The undersigned has not been furnished any specified level offering literature other than the Memorandum, the documents attached as Exhibits thereto and other materials which the Company may have provided at the request of profit or loss at any timethe undersigned, and the undersigned has not relied upon any such statement made by anyone only on the information contained in the making of this investment;
(iv) No general advertising Memorandum, the Exhibits attached thereto and the information furnished or solicitation has been employed made available to the undersigned in writing by the Corporation Company as described herein. The undersigned has not distributed this Agreement, the Subscription Documents and the Memorandum to anyone other than his legal, tax, accounting, or other advisors for their use solely in that capacity for the undersigned, and no one other than the undersigned or his legal, tax, accounting, or other advisors, if any, has used the Memorandum for any other purpose whatsoever. That no person or entity acting on behalf, or under the authority, of the undersigned is or will be entitled to any broker’s, finder’s or similar fee or commission in connection with the sale of the Shares this Agreement and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth investment in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoUnit(s).
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation Fund as follows:
(a) The Corporation has made available all information which the undersigned has requested in connection received, read carefully and understands the Prospectus and this Agreement and all attachments hereto and thereto and has (if applicable) consulted with the purchase of undersigned’s own attorney, accountant or investment advisor with respect to the Shares investment contemplated hereby and its suitability for the Warrants and the undersigned has been afforded an opportunity undersigned. Any special acknowledgment set forth below with respect to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment statement contained in the CorporationProspectus or this Agreement shall not be deemed to limit the generality of this representation and warranty.
(b) The undersigned has been provided an opportunity to obtain any additional information concerning the offering and the Fund to the extent the Fund possesses such knowledge information or can acquire it without unreasonable effort or expense and experience has been given the opportunity to ask questions of, and receive answers from, the Fund concerning the terms and conditions of the offering and other matters pertaining to this investment.
(c) The undersigned understands and acknowledges that (i) the Shares cannot be sold or transferred without the written consent of the Fund’s Board of Trustees (the “Board”) or its delegate, which may be withheld in its sole discretion and is expected to be granted, if at all, only under extenuating circumstances); (ii) any proposed transfer must include evidence satisfactory to the Board that the proposed transferee meets any requirements imposed by the Fund with respect to investor eligibility and suitability, and must be accompanied by transfer and other documentation that the Board or its delegate may reasonably request; (iii) the Board may not consent to a transfer of Shares by an investor unless such transfer is to a single transferee or after the transfer of a portion of the Shares, the balance of the account of each the transferee and transferor is not less than $10,000; (iv) the transferor of Shares may be charged reasonable expenses, including attorneys’ and accountants’ fees, incurred by the Fund in connection with the transfer; and (v) the undersigned has been advised to consult his, her or its financial, tax and legal advisors with respect to an investment in the Fund and the terms of this Agreement and all attachments hereto.
(d) The statements as to net worth and annual income or assets of the undersigned and the other information set forth in the attached Investor Questionnaire are true, correct and complete in all material respects.
(e) The undersigned has evaluated the risks of investing in the Shares, including those set forth in the Fund’s Prospectus, as well as the conflicts of interest to which the Fund is or will be subject, as described in the Fund’s Prospectus, and has determined that the Shares are a suitable investment for the undersigned. The undersigned understands that the Fund is a newly formed entity and has no past performance history or track record to report to the undersigned and that the past performance of accounts managed by the Fund’s investment adviser, ▇▇▇▇▇▇▇▇ Capital, LLC (“▇▇▇▇▇▇▇▇ Capital” or the “Adviser”), its affiliates and principals is not necessarily indicative of the future performance or profitability of the Fund or an investment therein. The undersigned further understands that no U.S. federal or state agency or authority has passed upon the Fund, the Prospectus, this Agreement or the Shares. The undersigned can bear the economic risk of this investment and can afford a complete loss of its investment. In evaluating the suitability of an investment in the Shares, the undersigned has not relied upon any representations or other information (whether oral or written) other than as set forth in the Prospectus or the Fund’s Statement of Additional Information, and attachments thereto, and independent investigations made by the undersigned or representative(s) of the undersigned.
(f) The undersigned is knowledgeable and experienced in evaluating investments and experienced in financial and business matters that the undersigned and is capable of evaluating the merits and risks of acquisition investing in the Shares. The aggregate amount of the Shares and the Warrants and investments of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrantsin, and the suitability of the investment undersigned’s commitments to, all similar investments that are illiquid is reasonable in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect relation to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision’s net worth.
(g) The undersigned recognizes address set forth in the Investor Contact Information is the undersigned’s true and correct residence, if an individual, or principal place of business, if an entity.
(h) Any information that the Corporation undersigned has little financial heretofore furnished to the Fund with respect to the undersigned is correct and operating history complete as of the date of this Agreement and if there should be any material change in such information prior to the undersigned’s purchase of Shares, the undersigned will immediately furnish such revised or corrected information to the Fund.
(i) If the undersigned is a natural person, the execution, delivery and performance by the undersigned of this Agreement is within the undersigned’s legal right, power and capacity, require no action by or in respect of, or filing with, any governmental body, agency or official (except as disclosed in writing to the Fund), and do not and will not contravene, or constitute a default under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree or other instrument to which the undersigned is party or by which the undersigned or any of his or her properties is bound. This Agreement constitutes a valid and binding agreement of the undersigned enforceable against the undersigned in accordance with its terms.
(j) If the undersigned is an entity, (i) the undersigned is duly authorized and qualified to become a shareholder of, and authorized to make investments in, the Fund, and the investment person signing this Agreement for or on behalf of such entity has been duly authorized by such entity to do so; and (ii) the undersigned is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, was formed prior to, and not for the purpose of, investing in the Shares and the Warrants execution, delivery and performance by it of this Agreement are within its powers, have been duly authorized by all necessary corporate or other action on its behalf, require no action by or in respect of, or filing with, any governmental body, agency or official (except as disclosed in writing to the Fund), and do not and will not contravene or constitute a default under any provision of applicable law or regulation or of its certificate of incorporation or other comparable organizational documents or any agreement, judgment, injunction, order, decree or other instrument to which the undersigned is speculative and involves a high degree of risk of loss party or by which the undersigned or any of the entire undersigned’s properties is bound. This Agreement constitutes a valid and binding agreement of the undersigned enforceable against the undersigned in accordance with its terms.
(k) The undersigned acknowledges and understands the conflicts of interest disclosed in the section of the Prospectus entitled “Conflicts of Interest” with respect to an investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004Fund.
(hl) The undersigned acknowledges and is aware of the following:
: (i) The Shares the speculative nature and the Warrants will not be, and investors degree of risk involved in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934Fund’s proposed investment activities, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment described in the Corporation;
Prospectus; (ii) No state the Fund may utilize leverage as part of its investment strategy; (iii) there are certain actual and potential conflicts of interest that should be considered by the undersigned before subscribing; (iv) the tax effects that may be expected by the Fund are not susceptible to precise prediction, and future legislation, future rulings of the U.S. Internal Revenue Service and court decisions may have an adverse effect on one or federal agency has more of the tax elections made by the Fund; and (v) valuations of the Fund may be unaudited and/or estimated.
(m) (For IRA, ▇▇▇▇▇, ERISA and other Plan Investors Only) If the undersigned is an IRA, ▇▇▇▇▇, ERISA or other plan that is: (i) an “employee benefit plan” within the meaning of Section 3(3) of Employee Retirement Income Security Act of 1974 (“ERISA”) that is subject to Part 4 of Subtitle B of Title I of ERISA and/or (ii) a “plan” within the meaning Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code (a “Plan”), the undersigned and any finding or determination as fiduciaries responsible for its investments (each a “Fiduciary”), are aware of and understand the Fund’s investment objective, policies and strategies and risks; and that the decision to invest Plan assets in the Fund was made with appropriate consideration of relevant investment factors with regard to the fairness Plan and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ▇▇▇▇▇. In addition, each Fiduciary executing this Agreement on behalf of the terms Plan personally represents and warrants to the Fund that: (A) each Fiduciary is a “fiduciary” of such Plan within the meaning of Title I of ERISA, Section 4975(e)(3) of the offering Code or other comparable non-ERISA laws and sale such person is authorized to execute this Agreement on behalf of the Plan; (B) each Fiduciary responsible for the Plan’s investments has executed this Agreement; (C) each Fiduciary is: (1) responsible for the decision to invest in the Fund; and (2) qualified to make such investment decision; (D) the decision to invest the Plan’s assets in the Fund was made with appropriate consideration of relevant investment factors with regard to the Plan and is consistent with the duties and responsibilities imposed upon fiduciaries with regard to their investment decisions under ERISA and other applicable laws; and (E) the purchase of the Shares by the Plan will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code; and (F) unless otherwise indicated in writing to the WarrantsFund, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;Plan is not a participant-directed defined contribution plan.
(iiin) Neither the Corporation nor any of its officers, directors, employees, agents No representations or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and warranties have been made to the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale Fund, or any agent of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rightsFund, designations, limitations and preferences of the Shares and the Warrants are other than as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoherein.
(io) The foregoing representations and representations, warranties, agreements, undertakings and all other statements contained elsewhere acknowledgments made by the undersigned in this AgreementAgreement (including the Investor Questionnaire) are made with the intent that they be relied upon by the Fund in determining his, are true and accurate her or its suitability as a purchaser of this date the Shares, and shall survive such datehis, her or its purchase. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscriptionIn addition, the undersigned shall give immediate written notice undertakes to notify the Fund immediately of such fact any change in any representation, warranty or other information relating to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforundersigned set forth herein.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation Company as follows:
(a) The Corporation undersigned (i) has made available adequate means of providing for his current needs and possible personal contingencies, and he has no need for liquidity of his investment in the Company; (ii) is an Accredited Investor, as defined below, or has the net worth sufficient to bear the risk of losing his entire investment: and (iii) has, alone or together with his Purchaser Representative (as hereinafter defined). such knowledge and experience in financial matters that the undersigned is capable of evaluating the relative risks and merits of this investment. "Accredited Investors11 include: (i) accredited investors as defined in Regulation D under the Securities Act of 1933. as amended ("Reg. D") i.e., (a) $1,000,000 in net worth (including spouse) or (b) $200,000 in annual income for the last two years and projected for the current year; and (ii) the Company or affiliates of the Company. “Non-Accredited Investors” are all information which subscribers who are not "Accredited Investors." All investors must have either a preexisting personal or business relationship with the Company or any of its affiliates: or by reason of their business or financial experience (or the business or financial experience of their unaffiliated professional advisors) would reasonably be assumed to have the capacity to protect their own interests in connection with this investment. Each subscriber must represent that he is purchasing for his own account not with a view to, or for, resale in connection with any distribution of the Shares.
(b) The address set forth in his Purchaser Questionnaire is his true and correct residence and he has no present intention of becoming a resident of any other slate or jurisdiction.
(c) The undersigned acknowledges that if a "Purchaser Representative,” as defined in Regulation D, has been utilized by the undersigned: (i) the undersigned has requested completed and executed the Acknowledgment of Use of Purchaser Representative; (ii) in connection with the purchase of the Shares and the Warrants and evaluating his investment as contemplated hereby, the undersigned has been afforded advised by his Purchaser Representative as to the merits and risks of the investment in general and the suitability of the investment for the undersigned in particular; and (iii) the undersigned's Purchaser Representative has completed and executed the Purchaser Representative Questionnaire.
(d) The undersigned has received and read or reviewed with his Purchaser Representative5 if any, and represents he is familiar with this Agreement, the other Subscription Documents and the Memorandum accompanying these documents. The undersigned confirms that all documents, records and books pertaining to the investment in the Company and requested by the undersigned or his Purchaser Representative have been made available or have been delivered to the undersigned and/or the undersigned's Purchaser Representative.
(e) The undersigned and/or his Purchaser Representative have had an opportunity to ask questions of and receive answers from the Corporation Company or a person or persons acting on its behalf, concerning the terms and conditions of this investment and the purchase financial condition, operations and prospects of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunderCompany.
(f) The undersigned is aware understands that his, her or its rights to transfer the Shares and have not been registered under the Warrants are restricted by Securities Act of 1933, as amended (the Act and applicable "Securities Act") or any state securities laws, that the Warrants laws and are not transferable without prior consent of the Corporation, instead being offered and sold in reliance on exemptions from registration; and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned further understands that he is purchasing an interest in a Company without being furnished any Offering literature or prospectus other than the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisionmaterial furnished hereby.
(g) The Shares for which the undersigned recognizes hereby subscribed are being acquired solely for his own account and are not being purchased with a view to or for the resale, distribution, subdivision, or fractionalization hereof. He has no present plans to enter into any such contract, undertaking, agreement or arrangement. In order to induce the Company to sell and issue the Shares subscribed for hereby to the undersigned, it is agreed that the Corporation has little financial and operating history and Company will have no obligation to recognize the investment in ownership, beneficial or otherwise. of such Shares by anyone but the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004undersigned.
(h) The undersigned acknowledges has received, completed and is aware returned to the Company, the Purchaser Questionnaire relating to his general ability to bear the risks of an investment in the following:Company and his suitability as an investor in a private offering: and the undersigned hereby affirms the correctness of his answers to such Confidential Purchaser Questionnaire and all other written Dr oral information concerning the undersigned's suitability provided to the Company by, or on behalf of, the undersigned.
(i) The Shares and person, if any, executing the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amendedPurchaser Representative Questionnaire, a copy of which has been previously provided received by the undersigned, is acting and is hereby designated to act as the undersigned's Purchaser Representative in connection with the offer and sale of the Shares to the undersigned; and
(vi) The undersigned is . This designation of a resident Purchaser Representative was made with the knowledge of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, disclosures made in such Purchaser Representative Questionnaire and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforSubscription Documents.
Appears in 1 contract
Sources: Stock Purchase Agreement
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned’s entire investment;
(ii) the undersigned is acquiring the Common Stock for the undersigned’s own account and not with a view to, or for resale in connection with, a distribution of the Common Stock, in violation of the Securities Act of 1933, as amended (the “1933 Act”);
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Common Stock will not cause such overall commitments to become excessive;
(iv) the undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Common Stock to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned’s current needs and personal contingencies and has no need for liquidity in connection with the purchase undersigned’s investment in the Common Stock; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the Shares signature page of this Subscription Agreement is the undersigned’s true and the Warrants correct principal office, and the undersigned has been afforded no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an opportunity to ask questions “accredited investor” as that term is defined in Rule 501 of and receive answers from Regulation D, as promulgated under the Corporation concerning 1933 Act because the terms and conditions undersigned meets one of the purchase following criteria (if the undersigned is not an “accredited investor”, place an “X” in the following blank: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the Shares and two most recent years, or joint income with the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy undersigned’s spouse in excess of information otherwise furnished by the Corporation; all $300,000 in each of the information so requested has been providedthose years, and the undersigned requires has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the 1933 Act; or
(vi) An entity in which all of the equity owners are accredited investors; or
(vii) A bank as defined in section 3(a)(2) of the Act, or a savings and loan association or other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; an insurance company as defined in section 2(a)(13) of the Act; an investment company registered under the Investment Company Act of 1940 or a business development company as defined in section 2(a)(48) of that Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state, its political subdivisions, or an agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; or
(viii) A private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Common Stock that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has received and reviewed the Memorandum and any other documents included with the Memorandum, and the undersigned has had the opportunity to discuss the acquisition of the Common Stock with the Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: (a) the Company has limited financial resources; (b) the Company is a new entity, which just began operations this year; (c) the Company has no assets; and (d) the Company has not concurrently, and may not in the future, receive additional investment funds. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and capitalization of the Company, is cognizant of the intended use of proceeds from this financing, has read and understood all risk factors in the Memorandum, and has available full information concerning the Company’s affairs to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsCommon Stock.
(e) The Shares undersigned has had the opportunity to ask questions of, and receive answers from, the Warrants are being acquired for Company concerning the terms of an investment in the Common Stock and to receive additional information necessary to verify the accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned Common Stock has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, been registered under the 1933 Act or the Securities Exchange Act of 1934, as amended, any state securities laws in reliance on an exemption for private offerings and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No no U.S. federal or state or federal agency has made any finding or determination as to the fairness of the terms this investment or any recommendation or endorsement of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;Common Stock.
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vig) The undersigned is a resident acknowledges that, in making the decision to purchase the Common Stock, it has relied solely upon independent investigations made by it.
(h) The undersigned has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the State set forth on the signature page heretoundersigned.
(i) The undersigned represents that an investment in the Common Stock is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Common Stock: “THE SECURITIES REPRESENTED BY THIS DOCUMENT HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND ARE ‘RESTRICTED SECURITIES’ AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY THROUGH REASONABLE MEANS AS DETERMINED BY THE COMPANY, INCLUDING AN OPINION OF SELLER’S COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY.”
(k) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Common Stock constitutes a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Common Stock.
(l) The undersigned understands and agrees that the Company is relying upon the accuracy, completeness, and truth of the undersigned’s representations, warranties, agreements, and certifications contained in this Subscription Agreement, in determining the undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate, or untruthful response, or the breach of the undersigned’s representations, warranties, agreements, or certifications may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 3 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription Agreement (All American Pet Company, Inc.)
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(aA) The Corporation undersigned has sufficient liquid assets to sustain a loss of the undersigned’s entire investment.
(B) The undersigned represents that he (she or it) is an Accredited Investor as that term is defined in Regulation D promulgated under the Act. In general, an “Accredited Investor” is deemed to be an institution with assets in excess of $5,000,000 or individuals with net worth in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly with their spouse.
(C) The Company has not made available all information which any other representations or warranties to the undersigned with respect to the Company except as contained herein and in the Memorandum. The Company has requested not rendered any investment advice to the undersigned with respect to the Company.
(D) The undersigned has not authorized any person or institution to act as his Purchaser Representative (as that term is defined in Regulation D of the General Rules and Regulations under the Act) in connection with this transaction. The undersigned has such knowledge and experience in financial, investment and business matters that he is capable of evaluating the purchase merits and risks of the Shares and prospective investment in the Warrants and Securities. The undersigned has consulted with such independent legal counsel or other advisers as he has deemed appropriate to assist the undersigned in evaluating his proposed investment in the Securities.
(E) The undersigned understands that the Securities involve a high degree of risk and represents that he (i) has adequate means of providing for his current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Securities; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has carefully reviewed the Memorandum. The undersigned has also been afforded an the opportunity to ask questions of of, and receive answers from from, the Corporation officers and/or directors of the Company concerning the terms and conditions of the purchase of the Shares Offering and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been provided, and availed himself of such opportunity to the undersigned requires no additional information extent he considers appropriate in order to permit him to evaluate the merits and risks of an investment in the CorporationSecurities. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cG) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at Securities including the direction of Underlying Shares have not been registered under the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has Act in reliance on an exemption for transactions by an issuer not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrantsinvolving a public offering, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such further understands that the undersigned is able to bear purchasing the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss Securities without being furnished any prospectus setting forth all of the entire investment information that would be required to be furnished under the Act.
(H) The undersigned further acknowledges that this Offering has not been passed upon or the merits thereof endorsed or approved by any state or federal authorities.
(I) The Securities being subscribed for are being acquired solely for the account of the undersigned and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the undersigned means that no other person has a beneficial interest in the CorporationSecurities (or Underlying Shares) subscribed for hereunder, and that no other person has furnished or will furnish directly or indirectly, any part of or guarantee the payment of any part of the consideration to be paid to the Company in connection therewith. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her does not intend to dispose of all or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning part of the Act, and will not be transferred by him, her Securities (or it in violation Warrant or Common Stock issuable upon any exercise of the Act or Warrant) except in compliance with the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by provisions of the Act and applicable state securities laws, laws and understands that the Warrants Securities are not transferable without prior consent being offered pursuant to a specific exemption under the provisions of the CorporationAct, which exemption(s) depends, among other things, upon compliance with the provisions of the Act.
(J) The undersigned further represents and agrees that the undersigned will not offer for sell, transfer or otherwise dispose of or encumber the Securities (including the Underlying Shares) unless prior to any such sale, sell transfer, disposition or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; encumbrance, the undersigned understands that will, if requested, furnish the certificates representing the Shares Company and the Warrants purchased will bear restrictive legends referring its transfer agent with an opinion of counsel satisfactory to the restrictions on transfer thereof resulting from their issuance without Company in form and substance that registration under the Act or applicable state securities laws and is not required. Notwithstanding the foregoing, the undersigned may pledge any or all of the Securities to any restriction on transfer set forth in a broker-dealer as collateral for a margin account, without notice to the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisionCompany.
(gK) The undersigned recognizes hereby agrees that the Corporation has little financial and operating history Company may insert the following or similar legend on the face of the certificates evidencing the Securities and the investment shares of Common Stock underlying the Securities, if required in the Shares compliance with federal and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but state securities laws: “These securities have not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, been registered under the Act or under the Securities Exchange Act securities laws of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it any state. They may not be possible sold, offered for the undersigned to liquidate the investment sale, pledged or hypothecated in the Corporation;absence of a registration statement in effect with respect to the securities under such act or an opinion of counsel reasonably satisfactory to the company that such registration is not required pursuant to a valid exemption under the Act”
(iiL) No state or federal agency has made any finding or determination as to The undersigned hereby acknowledges that the fairness of the terms of the offering and sale of the Shares and the WarrantsPlacement Agent, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;its affiliates and/or its beneficial owners may subscribe for Securities.
(iiiM) Neither the Corporation Company nor any person acting on its behalf has offered or sold the undersigned the Securities by means of its officersany form of general solicitation or general advertising and the Securities were not offered or sold to the undersigned by means of publicly disseminated advertisements or sales literature.
(N) The undersigned represents that during the 30 days prior to the date hereof, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon not, directly or indirectly, made any such statement made by anyone short sales of, or granted any option for the purchase of or entered into any hedging or similar transaction with the same economic effect as a net short sale, in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale Common Stock. The undersigned certifies that each of the Shares foregoing representations and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsection (A) through (N) inclusive of Incorporation, this Section 4 are true as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth date hereof, on the signature page hereto.
(i) The foregoing representations and warrantiesClosing Date, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned’s entire investment;
(ii) the undersigned is acquiring the Units for its own account and not with a view to, or for resale in connection with, a distribution of the Units, or of the Common Shares or Warrants included in the Units, in violation of the Securities Act of 1933, as amended (the “1933 Act”);
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Units will not cause such overall commitments to become excessive;
(iv) the undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Units to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned’s current needs and personal contingencies and has no need for liquidity in connection with the purchase undersigned’s investment in the Units; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the Shares signature page of this Subscription Agreement is the undersigned’s true and the Warrants correct principal office, and the undersigned has been afforded no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an opportunity to ask questions “accredited investor” as that term is defined in Rule 501 of and receive answers from Regulation D, as promulgated under the Corporation concerning 1933 Act because the terms and conditions undersigned meets one of the purchase following criteria (if the undersigned is not an “accredited investor”, place an “X” in the following blank: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the Shares and two most recent years, or joint income with the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy undersigned’s spouse in excess of information otherwise furnished by the Corporation; all $300,000 in each of the information so requested has been providedthose years, and the undersigned requires no has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the 1933 Act; or
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Units that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has received and reviewed the Supplemental Memorandum together with the following documents: (a) Summary of Evaluation of Proved Oil and Gas Reserves effective December 31, 2003 utilizing December 31, 2003 pricing, as prepared by W▇▇▇▇▇▇▇▇▇ Petroleum Consultants, Inc; (b) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003; (c) the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2004; (d) the Company’s Proxy Statement on Schedule 14A relating to the Company’s Annual Meeting of Stockholders on June 16, 2004; (e) the Company’s letter to shareholders and bondholders dated June 7, 2004; and (e) any other documents included with the Supplemental Memorandum, and the undersigned has had the opportunity to discuss the acquisition of the Units with the Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, has had periods when it has incurred negative cash flow, and has had periods when it has not operated at a profit; and the Company has not concurrently, and may not in the future, receive additional investment funds. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and capitalization of the Company; is cognizant of the intended use of proceeds from this financing, and has available full information concerning the Company’s affairs to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsUnits.
(e) The Shares undersigned has had the opportunity to ask questions of, and receive answers from, the Warrants are being acquired for Company concerning the terms of an investment in the Units and to receive additional information necessary to verify the accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing issuance of the Shares Units has not been registered under the 1933 Act or any state securities laws in reliance on an exemption for private offerings and the Warrants purchased will bear restrictive legends referring no U.S. federal or state agency has made any finding or determination as to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles fairness of Incorporation, as amended, this investment or any applicable Bylaw recommendation or contract provisionendorsement of the offering of the Units.
(g) The undersigned recognizes acknowledges that, in making the decision to purchase the Units, it has relied solely upon independent investigations made by it.
(h) The undersigned has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the undersigned.
(i) The undersigned represents that the Corporation has little financial and operating history and the an investment in the Units is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Common Shares and the Warrants is speculative and involves a high degree of risk of loss subscribed to by the undersigned (including those Common Shares exercisable upon exercise of the entire investment in the CorporationWarrants): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND ARE `RESTRICTED SECURITIES’ AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the WarrantsTHE SECURITIES MAY NOT BE OFFERED FOR SALE, includingSOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.”
(hk) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares Units and the securities included in the Units constitute a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Units. The Units, the Common Shares, the Warrants will and the Common Shares issuable upon exercise of the Warrants cannot bebe transferred, pledged, hypothecated, sold or otherwise disposed of unless they are registered under the 1933 Act, or an exemption from such registration is available and established to the satisfaction of the Company; except as provided in Section 3 below, investors in the Corporation Supplemental Offering have no rights to require that any transfer of the Shares and the Warrants be, Units be registered under the Act or 1933 Act; there is a limited public market for the Securities Exchange Act of 1934Company’s Common Shares; and accordingly, as amended, and the undersigned may have to hold the Shares and the Warrants Units indefinitely, ; and it may not be possible for the undersigned to liquidate the undersigned’s investment in the Corporation;Company.
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vil) The undersigned understands and agrees that the Company is a resident relying upon the accuracy, completeness, and truth of the State set forth on undersigned’s representations, warranties, agreements and certifications contained in this Subscription Agreement, in determining the signature page hereto.
(i) undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate or untruthful response, or the breach of the undersigned’s representations, warranties, agreements or certifications may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 5 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Warren Resources Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation and agrees with SOCO as follows:
(a) The Corporation has made available all information which the undersigned has requested in connection with the purchase of the Shares and the Warrants and the undersigned has been afforded an opportunity to ask questions furnished with a copy of the Merger Agreement, Territorial's Annual Report on Form 10-KSB for the fiscal year ended March 31, 1997, Territorial's Quarterly Reports on Form 10-QSB for the quarterly periods ended June 30, 1997 and receive answers from September 30, 1997, SOCO's Listing Particulars dated 14 May 1997 and SOCO's Interim Report dated 30 June 1997 (collectively, the Corporation concerning "Offering Materials"). The undersigned has received and read the Offering Materials and is familiar with the terms and conditions provisions thereof. The undersigned is a knowledgeable and sophisticated investor, capable of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate evaluating the merits and risks of an investment in the CorporationSOCO Shares. The undersigned has evaluated the risks of acquiring the SOCO Shares, which are substantial, and has determined that the SOCO Shares are a suitable investment for the undersigned.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she No governmental or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal other regulatory agency has made any finding or determination as to the fairness for public investment, nor any recommendation or endorsement, of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;SOCO Shares.
(iiic) Neither The undersigned has adequate means of providing for its current needs and possible contingencies, and it has no need now and anticipates no need in the Corporation nor any foreseeable future, to sell or otherwise liquidate the SOCO Shares. The undersigned is able to bear the economic risks of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that and consequently, without limiting the Corporation will attain any specified level generality of profit or loss at any timethe foregoing, it is able to hold the SOCO Shares for an indefinite period of time and the undersigned has not relied upon any such statement made by anyone sufficient net worth to sustain a loss of its entire investment in the making of this investment;SOCO Shares.
(ivd) No general advertising The undersigned has had sufficient opportunity to ask questions of and receive answers from the Company or solicitation its representatives and to obtain any additional information that the undersigned might request concerning the Company or the SOCO Shares. Any information so requested has been employed made available to the full and complete satisfaction of the undersigned. No representations or warranties have been made to the undersigned by the Corporation in connection with the sale Company or any officer, director, employee, or agent of the Shares and Company, other than the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences representations of the Shares and the Warrants are Company as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; andOffering Materials.
(vie) The undersigned is a resident understands that the SOCO Shares or any part thereof neither have been nor will they be registered under the Securities Act of 1933 (the "Act") in reliance upon exemptions from registration nor have the SOCO Shares or any part thereof been registered under any other securities laws. Neither the SOCO Shares nor any part thereof can be sold, transferred or assigned without compliance with the provisions of the State Act, applicable other securities laws and the further terms hereof. The undersigned is the sole party in interest under this Agreement. The undersigned is acquiring the SOCO Shares solely for investment for the account of the undersigned and has no present agreement, understanding or arrangement to subdivide, sell, assign, transfer or otherwise dispose of all or any part of the SOCO Shares to any other person.
(f) The information set forth herein regarding the undersigned is complete and accurate in all respects.
(g) No broker or finder has acted on behalf of the undersigned with respect to this matter.
(h) If applicable and if so advised by Territorial, the undersigned shall report the exchange of the Territorial Shares for the SOCO Shares pursuant to the Merger (the "Exchange") for U.S. federal income tax purposes as a tax-free reorganization meeting the requirements of Section 368(a) of the U.S. Internal Revenue Code of 1986, as amended (the "Code") and a transaction for which a "toll charge" is not due under Section 367(a) of the Code. The undersigned understands that if, as a result of the Merger and the 36,000:1 reverse stock split (the "Reverse Stock Split") preceding the Merger, the holders of more than 20% of the shares of Territorial stock that are outstanding on the signature page heretodate hereof receive cash rather than SOCO Shares in exchange for their shares of Territorial stock (giving effect to the Reverse Stock Split), then the Exchange will be reportable as a taxable transaction under U.S. tax laws. In such event, the undersigned further understands that the undersigned may be obligated to pay U.S. income taxes on any gain resulting from such exchange. Last, the undersigned acknowledges that, except as noted above, neither Territorial nor SOCO is responsible for advising the undersigned concerning tax matters resulting from the Merger or the Reverse Stock Split, and the undersigned shall look to its own personal tax advisors for tax advice concerning such transactions. The foregoing representations, warranties, and agreements shall survive the issuance of the SOCO Shares and such warranties and representations are true, correct and complete. The undersigned agrees to notify the Company of any adverse changes in the foregoing information which may hereafter occur.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscriptionSince 1 January 1998, the undersigned shall give immediate written notice has not directly or indirectly traded shares of Company or Territorial equity securities, any derivatives thereof or any options to buy or sell such fact to the Corporation, specifying which representations and warranties equity securities or statements are not true and accurate and the reasons thereforderivatives.
Appears in 1 contract
Sources: Reorganization Agreement (Territorial Resources Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with the Corporation Company as follows:
(a) The Corporation undersigned has made available all information been furnished with and has carefully read the Risk Factors and this Agreement, including Exhibits A and B hereto, and is familiar with and understands the terms of the Offering. The undersigned has carefully considered and has, to the extent the undersigned believes such discussion necessary, discussed with the undersigned's professional legal, tax, accounting and financial advisors, of the suitability of an investment in the Warrants for the undersigned's particular tax and financial situation and has determined that the Warrants being subscribed for by the undersigned are a suitable investment for the undersigned.
(b) The undersigned is an individual "ACCREDITED INVESTOR," as that term is defined in Rule 501(a) promulgated under the Securities Act, which is incorporated herein by reference. The undersigned has the knowledge and experience in financial and business matters necessary for evaluating the merits and risks of an acquisition of Warrants. THE UNDERSIGNED HAS CHECKED THE BOX ON THE SIGNATURE PAGE HERETO INDICATING THE BASIS ON WHICH HE IS REPRESENTING HIS STATUS AS AN "ACCREDITED INVESTOR."
(c) The undersigned acknowledges that (i) the undersigned has had the right to request copies of any documents, records, and books pertaining to this investment and (ii) any such documents, records and books which the undersigned has requested in connection with have been made available for inspection by the purchase of the Shares undersigned and the Warrants and undersigned's attorney, accountant or adviser.
(d) The undersigned or the undersigned undersigned's adviser has been afforded an had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Corporation Company concerning the terms offering and conditions all such questions have been answered to the full satisfaction of the purchase undersigned.
(e) The undersigned is not subscribing for Warrants as a result of or after any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or meeting.
(f) If the Shares undersigned is a natural person, the undersigned has reached the age of majority in the state in which the undersigned resides, has adequate means of providing for the undersigned's current financial needs and contingencies, is able to bear the substantial economic risks of an investment in the Warrants for an indefinite period of time, has no need for liquidity in such investment and, at the present time, could afford a complete loss of such investment.
(g) The undersigned or the undersigned's purchaser representative, as the case may be, has such knowledge and concerning experience in financial, tax and business matters so as to enable the Corporation and the opportunity undersigned to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of use the information so requested has been provided, and made available to the undersigned requires no additional information in connection with the offering to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making to make an informed investment decision with respect thereto; .
(h) The undersigned will not sell or otherwise transfer the Warrants or the shares of Common Stock issuable upon exercise of the Warrants (the "WARRANT SHARES") without registration under the Securities Act of 1933, as amended (the "SECURITIES ACT") and applicable state securities laws or an exemption therefrom. Subject to the terms of Section 4 below, neither the Warrants nor the Warrant Shares have been registered under the Securities Act or under the securities laws of any state. The undersigned represents that the undersigned is purchasing the Warrants and the Warrant Shares for the undersigned's own account, for investment and not with a view to resale or distribution except in compliance with the Securities Act. The undersigned has reviewed all not offered or sold the Warrants being acquired nor does the undersigned have any present intention of selling, distributing or otherwise disposing of such Warrants or Warrant Shares either currently or after the passage of a fixed or determinable period of time or upon the occurrence or non-occurrence of any predetermined event or circumstance in violation of the information provided by Securities Act. The undersigned is aware that there is currently no market for the Corporation and by virtue Warrants, the Company has no obligation to register the Warrants subscribed for hereunder, or to make available an exemption from the registration requirements pursuant to Rule 144 or any successor rule for resale of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(gi) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of substantial risks, including loss of the entire investment amount of such investment. Further, the undersigned has carefully read and considered the matters set forth in the Corporation. The undersigned Risk Factors and has taken full cognizance of and understands all of the risk factors risks related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(hj) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights In addition to require any other restrictive legends that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of required by the terms of the offering and sale of Warrants, the Shares undersigned acknowledges that the certificates representing the Warrants and the WarrantsWarrant Shares shall be stamped or otherwise imprinted with a legend substantially in the following form: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND SUCH LAWS OR PURSUANT TO AN EXEMPTION THEREFROM, WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE."
(iiik) Neither The undersigned shall indemnify and hold harmless the Corporation nor any of Company, and its officers, directorsdirectors or control persons who are or may be a party or are or may be threatened to be made a party to any threatened, employeespending or completed action, agents suit or advisors proceeding, whether civil, criminal, administrative or others haveinvestigative, in connection with this investment, indicated that the Corporation will attain by reason of or arising from any specified level actual or alleged misrepresentation or misstatement of profit facts or loss at any time, and omission to represent or state facts made or alleged to have been made by the undersigned has not relied upon any such statement made by anyone in to the making of this investment;
(iv) No general advertising Company, or solicitation has omitted or alleged to have been employed omitted by the Corporation undersigned, concerning the undersigned or the undersigned's authority to invest or financial position in connection with the sale of offering, against losses, liabilities and expenses for which the Shares Company, or its officers, directors or control persons have not otherwise been reimbursed (including attorneys' fees, judgements, fines and the Warrants hereby offered amounts paid in settlement) actually and reasonably incurred by the Corporation;
(v) The relative rightsCompany, designationsor such officers, limitations and preferences of the Shares and the Warrants are as set forth directors or control persons in the Corporation's Articles of Incorporationconnection with such action, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretosuit or proceeding.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby personally represents and warrants to the Corporation as followsthat:
(a) 3.1. The Corporation undersigned has made available all information reached the age of majority in the state or country in which the undersigned resides.
3.2. The undersigned (or the entity for which the undersigned is acting, if any) intends to retain indefinitely, and has requested in connection with the purchase no present arrangement, understanding or agreement for disposing of the Shares Investment Securities and takes such Investment Securities solely for the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions account of the purchase name(s) which appear below.
3.3. If a trust, corporation, partnership, or other entity, the undersigned: (i) is duly organized and validly existing under the laws of the Shares state of its formation; (ii) is duly authorized and empowered to purchase the Warrants Investment Securities; (iii) was not organized exclusively for the purpose of acquiring the Investment Securities and concerning has an independent reason for existence beyond such investment; (iv) has duly authorized the Corporation and the opportunity signatory hereto to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all execute this subscription agreement on behalf of the information so requested has been providedundersigned, and, upon such execution, the subscription agreement and any related documents shall be a binding obligation of the undersigned; and (v) will, upon request of counsel to the Company, furnish evidence of the representations and warranties of this subparagraph, including certified copies of the certificate (articles) of incorporation, articles of (limited) partnership, or other creating or implementing documents. The undersigned requires no additional information further agrees to evaluate the merits and risks furnish any other documents relating to authority to act on behalf of an investment in the Corporationany other entity.
(b) 3.4. The undersigned is an “Accredited Investor” as defined in Regulation D under the Securities Act of 1933, as amended. The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition the prospective investment.
3.5. It has been called to the undersigned's attention that this investment involves a high degree of risk, and no assurances are or have been made regarding the Shares and economic advantages, if any, which may inure to the Warrants and benefit of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of investors. The economic benefit from an investment in the Shares and Investment Securities depends on the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction ability of the Board Company to successfully conduct its business activities. The accomplishment of Directors such goals in turn depends on many factors beyond the control of the Corporation Company or its management. Accordingly, the suitability for any particular investor of a purchase of the Investment Securities will depend upon, among other things, such investor's investment objectives and hesuch investor's ability to accept speculative risks, she or it has received no representation from including the Corporation's counsel about risk of a total loss of investment in the personal tax consequences of this AgreementInvestment Securities. The undersigned has relied upon hisand the undersigned's advisor(s), her or its own legal if any, have carefully reviewed and tax counsel to understand the extent herisk of, she or it deems necessary as to all matters and questions concerning the other considerations relating to, a purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsInvestment Securities.
(d) 3.6. The undersigned's financial condition is such that the undersigned is able to bear the risk economic risks of holding this investment, is able to hold the Shares and the Warrants Investment Securities for an indefinite period of time time, and the risk of has sufficient net worth to sustain a loss of the entire investment in the CorporationCompany in the event such loss should occur.
3.7. The undersigned believes and the undersigned's advisor(s), if any, have relied only upon the information contained in the Investment Documents made available to the undersigned and the undersigned's advisor(s). Any other information concerning this offering, whether oral or written, may be incomplete or inaccurate. Only the Investment Documents are intended to be a complete description of the offering and its terms.
3.8. The Company has answered all inquiries that the investment undersigned and the undersigned's advisor(s), if any, have made of it concerning the Company or any other matters relating to the business and proposed operation of the Company and the offer and sale of the Investment Securities. No oral statement, printed material, or inducement which is contrary to the information contained in the Shares Investment Documents has been given or made by or on behalf of the Company to the undersigned or the undersigned's advisor(s), if any.
3.9. All of the representations and information provided by the Warrants is suitable for him, her or is based upon his, her or its investment objectives undersigned in this subscription agreement and financial needs, and any additional information which the undersigned has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment furnished to the Company with respect to the Shares undersigned’s financial position and business experience are accurate and complete as of the Warrantsdate that this subscription agreement was executed by the undersigned. If there should be any material adverse change in such representations or information prior to the sale of the Investment Securities subscribed for herein to the undersigned, the undersigned will immediately furnish accurate and complete information concerning any such material change to the Company.
3.10. The undersigned represents, if the undersigned is subject to the Employee Retirement Income Security Act of 1974 (e) The Shares and "ERISA"), that in making the Warrants are being acquired for proposed investment the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware of and has taken into consideration the diversification requirements of Section 404(a)(1)(C) of ERISA, and has concluded that histhe proposed investment is a prudent one.
3.11. The undersigned understands that the issuance of the Investment Securities to the undersigned has not been registered under the Securities Act in reliance upon one or more specific exemptions therefrom, her or its rights to transfer including Regulation D and/or Regulation S, which exemption depends upon, among other things, the Shares and accuracy of the Warrants are restricted by undersigned’s representations made in this Agreement. The undersigned understands that the Investment Securities must be held indefinitely unless subsequently registered under the Securities Act and qualified under applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, or unless an exemption from such registration and the undersigned will not offer for sale, sell or qualification requirements is otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporationavailable. The undersigned acknowledges that the Company has taken full cognizance no obligation to register or qualify the Investment Securities for resale. The undersigned acknowledges that the Company will refuse to register any transfer of and understands all any Investment Securities that is not made in accordance with the provisions of the risk factors related Regulation S, registered pursuant to the purchase of the Shares and the WarrantsSecurities Act or otherwise exempt from such registration. The undersigned further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, those set forth the time and manner of sale, the holding period for the Investment Securities, and requirements relating to the Company which are outside of the undersigned’s control, and which the Company is under no obligation and may not be able to satisfy. The undersigned has been independently advised as to the caption "Risk Factors" applicable holding period imposed in respect of the Investment Securities by securities legislation in the Offering Memorandum of jurisdiction in which the Corporation dated January 21, 2004.
(h) The undersigned acknowledges resides and confirms that no representation has been made respecting the applicable holding periods for the Investment Securities in such jurisdiction and it is aware of the following:
(i) The Shares risks and other characteristics of the Warrants will not be, Investment Securities and investors in of the Corporation have no rights to require fact that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold not resell the Shares Investment Securities except in accordance with applicable securities legislation and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoregulatory policy.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to to, and agrees with, the Corporation Company as follows:
(a) The Corporation has made available all information which undersigned understands that the offering and sale of the Units by the Company to the undersigned has requested is intended to be exempt from registration under the Securities Act by virtue of Section 4(2) of the Securities Act and the provisions of Rule 506 of Regulation D promulgated thereunder and, in connection accordance therewith and in furtherance thereof, the undersigned represents and warrants to and agrees with the purchase of Company as follows:
(i) The undersigned is acquiring the Shares and the Warrants for the undersigned’s own account as principal, for investment purposes only, and not with a view to, or for, resale or distribution of all or any part of the Shares, the Warrants, or the Warrant Shares and no other person has a direct or indirect beneficial interest in such Warrants, Shares or Warrant Shares;
(ii) Neither the undersigned nor the undersigned’s investment advisors, if any, have been furnished any offering literature other than this Subscription Agreement and the exhibits attached hereto;
(iii) The undersigned acknowledges that it has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions conducted its own independent evaluation of the purchase Company and has analyzed the risks associated with an investment in the Units and has based its decision to invest in the Units on the results of this evaluation and analysis;
(iv) The undersigned (A) has such knowledge of, and experience in, business and financial matters so as to enable it to utilize the information made available to it in connection with the offering of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information Units in order to evaluate the merits and risks of an investment in the CorporationUnits and to make an informed investment decision with respect thereto, and (B) the undersigned has evaluated the risks of investing;
(v) The undersigned understands that the certificate(s) evidencing ownership of the Shares and the Warrant Shares and the Warrants will each bear a restrictive legend and have not been registered under the Securities Act or any state securities laws, and may not be sold or transferred unless (i) such sale or transfer is subsequently registered thereunder; (ii) the undersigned shall have delivered to the Company an opinion of counsel (the substance of which shall be reasonably acceptable to the Company) to the effect that the securities to be sold or transferred may be sold or transferred pursuant to an exemption from such registration; (iii) the securities are sold pursuant to Rule 144 promulgated under the Securities Act (or a successor rule); or (iv) such sale or transfer is to an Affiliate of the undersigned; and
(vi) Any information provided by the undersigned to the Company with respect to the undersigned’s financial position and business experience is true and correct and the undersigned understands that the Company is relying upon such information in connection with the purchase of the Units by the undersigned.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, no federal or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has passed upon the Units or made any finding or determination as to the fairness of this investment in the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;Units.
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vic) The undersigned is a resident acknowledges and agrees that the Company intends to pay commissions to Four Tong Investments, Ltd. These commissions will consist of the State set forth on the signature page hereto.
(i) cash equal to eight percent (8%) of the gross proceeds received by the Company from such sales, plus (ii) a warrant to purchase that number of shares of common stock equal to eight percent (8%) of the aggregate Units sold in the Offering at an exercise price per share equal to$5.60. The foregoing representations and warranties, and all other statements contained elsewhere warrant described in this Agreement, are true and accurate subsection (ii) shall be in the form attached as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforExhibit "A" hereto.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(aA) The Corporation undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
(B) The undersigned represents that it is an Accredited Investor as that term is defined in Regulation D promulgated under the Act. In general, an "accredited investor" is an organization described in Section 501(c)(8) of the Internal Revenue Code, a corporation, Massachusetts or similar business trust, or company, not formed for the specific purpose of acquiring the securities offered, with assets in excess of $5,000,000.
(C) IThe Company has not made available all information which any representations or warranties to the undersigned with respect to the Company, its profitability or future performance or rendered any investment advice except as contained herein.
(D) The undersigned has requested not authorized any person or institution to act as its Purchaser Representative (as that term is defined in Regulation D) in connection with this transaction. The undersigned has such knowledge and experience in financial, investment and business matters that it is capable of evaluating the purchase merits and risks of the Shares prospective investment in the securities of the Company. The undersigned has consulted with such independent legal counsel or other advisers as it has deemed appropriate to assist the undersigned in evaluating its proposed investment in the Company.
(E) The undersigned represents that it (i) has adequate means of providing for its current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Warrants Company; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has been afforded an the opportunity to ask questions of of, and receive answers from the Corporation officers and/or directors of the Company acting in its behalf concerning the terms and conditions of the purchase of the Shares this transaction and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been provided, and availed itself of such opportunity to the undersigned requires no additional information extent it considers appropriate in order to permit it to evaluate the merits and risks of an investment in the CorporationCompany. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cG) The undersigned acknowledges that the Corporation's counsel Shares have not been registered under the Act in reliance on an exemption for transactions by an issuer not involving a public offering.
(H) The undersigned further acknowledges that this Offer has prepared this Agreement at not been passed upon or the direction merits thereof endorsed or approved by any state or federal authorities.
(I) The Shares being subscribed for are being acquired solely for the account of the Board undersigned for personal investment and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the undersigned means that no other person has a beneficial interest in the Shares subscribed for hereunder, and that no other person has furnished or will furnish directly or indirectly, any part of Directors or guarantee the payment of any part of the Corporation and he, she or it has received no representation from consideration to be paid to the Corporation's counsel about the personal tax consequences of this AgreementCompany in connection therewith. The undersigned has relied upon his, her does not intend to dispose of all or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase any part of the Shares and the Warrants and has not relied upon any opinion of the CorporationShares, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved except in compliance with the investment in the Shares and the Warrants, and the suitability provisions of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, laws and understands that the Warrants Shares are not transferable without prior consent being offered pursuant to a specific exemption under the provisions of the CorporationAct, which exemption(s) depends, among other things, upon the compliance with the provisions of the Act.
(J) The undersigned understands that sales of the Shares may be subject to restrictions imposed under state securities laws. The undersigned further represents and agrees that the undersigned will not offer for sell, transfer, pledge or otherwise dispose of or encumber the Shares, except pursuant to the applicable rules and regulations under applicable state securities laws, and prior to any such sale, sell transfer, pledge, disposition or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; encumbrance, the undersigned understands will, if requested, furnish the Company and its transfer agent with an opinion of counsel satisfactory to the Company in form and substance that registration under applicable state securities laws is not required.
(K) The undersigned hereby agrees that the Company may place the following or similar legend on the face of the certificates representing the evidencing Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration if required in compliance with state securities laws: "These securities have not been registered under the securities laws and to any restriction on transfer set forth in the Corporation's Articles Securities Act of Incorporation1933, as amended, or any state securities laws and may not be sold or otherwise transferred or disposed of except pursuant to an effective registration statement under any applicable Bylaw federal and state securities laws, or contract provisionan opinion of counsel satisfactory to counsel to the Company that an exemption from registration is available."
(gL) The undersigned recognizes certifies that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss each of the entire investment in the Corporation. The undersigned has taken full cognizance of foregoing representations and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsections (A) through (K) inclusive of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this AgreementSection 4, are true and accurate as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Sources: Subscription and Debt Conversion Agreement (Vitech America Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(a) The Corporation has made available all information which (i) the undersigned has requested can bear the economic risk of losing the undersigned’s entire investment in connection with the purchase Shares; (ii) the undersigned is acquiring the Shares for investment purposes only and the Shares must be held by the undersigned without sale, transfer, or other disposition for an indefinite period unless the transfer of the Shares subsequently are, registered under the U.S. federal securities laws or unless exemptions from registration are available; (iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an undersigned’s investment in the Shares and the Warrants.
will not cause such overall commitments to become excessive; (civ) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's ’s financial condition is such that the undersigned is able under no present or contemplated future need to bear the risk dispose of holding any portion of the Shares and to satisfy any existing or contemplated undertaking, need, or indebtedness; (v) the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for of providing for the under‐signed’s current financial needs and personal contingencies and has no need for liquidity in the undersigned’s investment in the Shares; (vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate and has evaluated the merits and risks of investment with respect this investment; and.
(viii) the undersigned understands that oil and gas ventures carry additional risks unique to the Shares oil and gas industry and that the undersigned has had the opportunity to review the attached offering with qualified energy experts and has been afforded the opportunity to inquire therein.
(b) The address set forth below on the signature page of this Subscription Agreement is the undersigned’s true and correct residence, and the Warrantsundersigned has no present intention of becoming a resident of any other state or jurisdiction.
(c) The undersigned is an “accredited investor” as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933, as amended (the “Securities Act”), because the undersigned meets one of the following criteria (IF THE UNDERSIGNED IS NOT AN “ACCREDITED INVESTOR”, PLACE AN “X” IN THE FOLLOWING BLANK: _____):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned’s spouse in excess of $600,000 in each of those years, and the undersigned has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $3,000,000; or
(v) A trust with total assets in excess of $3,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the Securities Act; or
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Shares that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has (i) had the opportunity to discuss the acquisition of the Shares with the Company, and (ii) obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, and has never operated at a profit; and the Company may not in the future, receive additional investment funds, and the Company will not be able to implement its business plan without additional investment funds. The undersigned further represents the undersigned is cognizant of the operations, financial condition and capitalization of the Company, and has available full information concerning the Company’s affairs to evaluate the merits and risks of the investment in the Shares.
(e) The undersigned has had the opportunity to ask questions of, and receive answers from, the Company concerning the terms of an investment in the Shares and to receive additional information necessary to verify the Warrants are being acquired for accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration have not been registered under the securities laws and to any restriction on transfer set forth in the Corporation's Articles U.S. Securities Act of Incorporation1933, as amendedamended (the “Securities Act”), or any applicable Bylaw state securities laws in reliance on an exemption for private offerings and no U.S. federal or contract provisionstate agency has made any finding or determination as to the fairness of this investment or any recommendation or endorsement of the offering of the Shares.
(g) The Shares for which the undersigned recognizes hereby subscribes for are being and will be acquired solely for the undersigned’s own account, for investment, and is not being purchased with a view to or for the resale, distribution, subdivision, or fractionalization thereof; the undersigned has no agreement or arrangement for any such resale, distribution, subdivision, or fractionalization thereof.
(h) The undersigned acknowledges that, in making the decision to purchase the Shares, it has relied solely upon independent investigations made by the undersigned.
(i) The undersigned has the full right, power, and authority to enter this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid, and binding obligation of the undersigned.
(j) The undersigned represents that the Corporation has little financial and operating history and the an investment in the Shares and is a suitable investment for the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004undersigned.
(hk) The undersigned is not associated with or an affiliate of any member firm of the National Association of Securities Dealers, Inc.
(l) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificates representing the Shares subscribed to by the undersigned:
(m) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares are a speculative investment and involve a high degree of risk of loss by the Warrants will undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Shares. The Shares cannot bebe transferred, pledged, hypothecated, sold, or otherwise disposed of unless it is registered under the Securities Act, or an exemption from such registration is available and established to the satisfaction of the Company; investors in the Corporation Company have no rights right to require that any transfer of the Shares and the Warrants be, be registered under the Securities Act or and the Securities Exchange Act of 1934Company is under no obligation to register the Share; there is a limited public market for the Company’s common stock; and accordingly, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, ; and it may not be possible for the undersigned to liquidate the undersigned’s investment in the Corporation;Company.
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vin) The undersigned understands and agrees that the Company is a resident relying upon the accuracy, completeness, and truth of the State set forth on undersigned’s representations, warranties, agreements, and certifications contained in this Subscription Agreement, in determining the signature page hereto.
(i) undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate, or untruthful response, or the breach of the undersigned’s representations, warranties, agreements, or certifications, may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for these and other losses in accordance with Section 3 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate subscription amount and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation Company as follows:
(a) The Corporation undersigned (I) has made available all information which adequate means of providing for his current needs and possible personal contingencies, and he has no need for liquidity of his investment in the Company; (ii) is an Accredited Investor, as defined below, or has the net worth sufficient to bear the risk of losing his entire investment; or (iii) has, such knowledge and experience in financial matters that the undersigned has requested is capable of evaluating the relative risks and merits of this investment. "Accredited Investors" include: (I) accredited investors as defined in Regulation D under the Securities Act of 1933, as amended ("Reg. D") i.e., (a) $1,100,000 in net worth (including spouse) or (b) $200,000 in annual income for the last two years and projected for the current year; and (ii) the Company or affiliates of the Company. "Non-Accredited Investors" are all subscribers who are not "Accredited Investors." All "Non-Accredited" investors must have either a preexisting personal or business relationship with the Company or any of its affiliates, or by reason of their business or financial experience (or the business or financial experience of their unaffiliated professional advisors) would reasonably be assumed to have the capacity to protect their own interests in connection with the purchase this investment.
(b) The undersigned is purchasing for his/her own account not with a view to or for resale in connection with any distribution of the Shares Shares.
(c) The undersigned has received and read or reviewed and represents he is familiar with this Agreement and the Warrants Memorandum accompanying these documents. The undersigned confirms that all documents, records and books pertaining to the investment in the Company and requested by the undersigned have been made available or have been delivered to the undersigned.
(d) The undersigned has been afforded had an opportunity to ask questions of and receive answers from the Corporation Company or a person or persons acting on its behalf, concerning the terms and conditions of this investment and the purchase financial condition, operations and prospects of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsCompany.
(e) The undersigned understands that the Shares have not been registered under the Securities Act of 1933, as amended (the "Securities Act") or any state securities laws and the Warrants are instead being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, offered and will not be transferred by him, her or it sold in violation of the Act or the then applicable rules or regulations thereunderreliance on exemptions from registration.
(f) The Shares for which the undersigned is aware that hishereby subscribed are being acquired solely for his own account, her and are not being purchased with a view to or its rights for the resale, distribution, subdivision, or fractionalization hereof. He has no present plans to transfer enter into any such contract, undertaking, agreement or arrangement. In order to induce the Company to sell and issue the Shares and subscribed for hereby to the Warrants are restricted by the Act and applicable state securities lawsundersigned, it is agreed that the Warrants are not transferable without prior consent Company will have no obligation to recognize the ownership, beneficial or otherwise, of such Shares by anyone but the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisionundersigned.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have that no rights to require that the Shares and the Warrants be, registered under the Act federal or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms offering of Shares for investment or any recommendation or endorsement of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoShares.
(ih) That the Company shall incur certain costs and expenses and undertake other actions in reliance upon the irrevocability of the subscription (following the three day rescission period described in Paragraph 2(c) of this Agreement) for the Shares made hereunder. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate as of this the date of delivery of the Funds to the Company and shall survive such datedelivery. If If, in any respect respect, such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscriptionthe Funds pursuant to Paragraph 1 hereof, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and Company.
(k) Undersigned is an (Please check the reasons therefor.appropriate box):Accredited Investor: [ ] Non-Accredited Investor: [ ]
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(a1) The Corporation has made available all information which the undersigned has requested in connection with can bear the purchase economic risk of losing the undersigned's entire investment;
(2) the undersigned is or will be acquiring the Securities for investment purposes only and the Securities the undersigned is or will be acquiring will be held by the undersigned without sale, transfer or other disposition for an indefinite period unless the transfer of the Shares Securities subsequently is registered under the U.S. federal securities laws or unless exemptions from registration are available;
(3) the undersigned's overall commitments to investments that are not readily marketable is not disproportionate to the undersigned's net worth and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an undersigned's investment in the Corporation.Securities will not cause such overall commitments to become excessive;
(b4) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able under no present or contemplated future need to bear the risk dispose of holding the Shares and the Warrants for an indefinite period of time and the risk of loss any portion of the entire investment in Securities to satisfy any existing or contemplated undertaking, need or indebtedness;
(5) the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for of providing for the undersigned's current financial needs and personal contingencies and has no need for liquidity in the undersigned's investment in the Securities; and
(6) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate and has evaluated the merits and risks of investment with respect to the Shares and the Warrantsthis investment.
(eb) The Shares and address set forth below on the Warrants are being acquired for signature page of this Subscription Agreement is the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, true and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any timecorrect residence, and the undersigned has not relied upon no present intention of becoming a resident of any such statement made by anyone in the making of this investment;other state or jurisdiction.
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vic) The undersigned is a resident an "accredited investor" as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933, as amended (the "1933 Act") because the Buyer meets one of the State set forth on following criteria (if the signature page hereto.undersigned is not an "accredited investor", place an "X" in the following blank:____:)
(i1) The foregoing representations and warrantiesAn individual with a net worth, individually or jointly with the undersigned's spouse, of $1,000,000; or
(2) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned's spouse in excess of $300,000 in each of those years, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice has a reasonable expectation of such fact to reaching the Corporationsame income level in the current year; or
(3) An individual who is an officer or director of the Company; or
(4) A corporation, specifying which representations and warranties Massachusetts or statements are similar business trust, or partnership, not true and accurate and formed for the reasons therefor.specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(5) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Hudson River Investments Inc)
Representations and Warranties of the Undersigned. The To induce the Company to accept the undersigned's subscription, the undersigned hereby represents and warrants to the Corporation as followsCompany that:
(a1) The Corporation the undersigned, if an individual, has made available reached the age of majority in the jurisdiction in which the undersigned resides, is a bona fide resident of the jurisdiction contained in the address set forth on the signature page of this Subscription Agreement, is legally competent to execute this Subscription Agreement, and does not intend to change residence to another jurisdiction;
(2) the undersigned, if an entity, is duly authorized to execute this Subscription Agreement and this Subscription Agreement, when executed and delivered by the undersigned, will constitute a legal, valid and binding obligation enforceable against the undersigned in accordance with its terms and that the execution, delivery and performance of this Subscription Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate or other necessary action on the part of the undersigned;
(3) the Shares subscribed for hereby are being acquired by the undersigned for investment purposes only, for the account of the undersigned and not with the view to any resale or distribution thereof, and the undersigned is not participating, directly or indirectly, in a distribution of such Shares and will not take, or cause to be taken, any action that would cause the undersigned to be deemed an "underwriter" of such Shares as defined in Section 2(l1) of the Act;
(4) the undersigned has had access to all materials, books, records, documents and information relating to the Company which the undersigned has requested requested, including the SEC Filings and has independently verified the accuracy of the information contained therein;
(5) the undersigned acknowledges and understands that investment in connection the Shares involves a high degree of risk, including without limitation, the risks set forth in the Form S-3 and other risks, including the possible reversal or adjustment of certain revenues recognized by the Company in prior periods, the Company's continued difficulty in obtaining lease financing in order to consummate equipment sales and breaches by third parties of equipment sales previously made, the Company's need for financing, the possible breach by the Company of certain contracts, including agreements to register securities with the purchase of the Shares SEC and failure to pay a promissory note, and the Warrants and failure of several previously announced joint ventures, including the Telecom Alliance, to generate significant benefits, which may lead to their dissolution.
(6) the undersigned acknowledges that the undersigned has been afforded offered an opportunity to ask questions of of, and receive answers from the Corporation concerning the terms and conditions from, officers of the purchase Company concerning all material aspects of the Shares Company and its business and the Warrants Offering, and concerning the Corporation and the opportunity to obtain that any additional request, for such information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and fully complied with to the undersigned requires no additional extent that the Company possesses such information to evaluate the merits and risks of an investment in the Corporation.or can acquire it without unreasonable effort or expense;
(b7) The the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares Company and can afford a complete loss of his investment in the Warrants.Company;
(c8) the undersigned has, in connection with its decision to purchase the Shares, relied solely upon the SEC Filings, the Risk Factors, the information disclosed herein and their own due diligence;
(9) The the undersigned acknowledges represents and warrants to and covenants with the Company that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal not engaged and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase will not engage in any sales of the Shares and prior to the Warrants and has not relied upon any opinion effectiveness of the Corporation, its counsel or accountants. Furthermore, Resale Registration Statement (as defined below in Section 6);
(10) the undersigned recognizes that no governmental agency has obtained, to passed upon the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability issuance of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
(g) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrantsthis Offering;
(iii11) Neither if the Corporation nor any undersigned is purchasing the Shares subscribed for hereby in a representative or fiduciary capacity, the representations and warranties contained herein shall be deemed to have been made on behalf of its officers, directors, employees, agents the person or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and persons for whom such Shares are being purchased;
(12) the undersigned has not relied upon entered into any such statement made by anyone in agreement to pay commissions to any persons with respect to the making purchase or sale of this investmentthe Shares, except commissions for which the undersigned will be responsible;
(iv13) No general advertising or solicitation has been employed by the Corporation in connection undersigned acknowledges that the Company will pay to Sunrise Securities Corp. ("Sunrise") a commission with respect to the sale of the Shares by the Company to the undersigned and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences undersigned acknowledges that Sunrise has not engaged in an independent due diligence investigation of the Shares Company and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth relying solely on the signature page heretoCompany's representations.
(i14) The foregoing representations and warranties, and all other statements contained elsewhere the undersigned is an "Accredited Investor" as that term is defined in this Agreement, are true and accurate as Section 501(a) of this date and shall survive such dateRegulation D promulgated under the Act. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscriptionSpecifically, the undersigned shall give immediate written notice is (check appropriate item(s)): [ ] (i) a bank as defined in Section 3(a)(2) of the Act, or a savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity; a broker or dealer registered pursuant to Section 15 of the Exchange Act; an insurance company as defined in Section 2(13) of the Act; an investment company registered under the Investment Company Act of 1940 (the "Investment Company Act") or a business development company, as defined in Section 2(a)(48) of that Act; a small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; or an employee benefit plan within the meaning of the Employment Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such fact to Act, which is either a bank, savings and loan association, insurance company, or registered investment advisor, or if the Corporationemployee benefit plan has total assets in excess of $5,000,000 or, specifying which representations and warranties or statements if a self-directed plan, with investment decisions made solely by persons that are not true and accurate and the reasons therefor.Accredited Investors;
Appears in 1 contract
Sources: Subscription Agreement (Coyote Network Systems Inc)
Representations and Warranties of the Undersigned. The undersigned undersigned, to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(A) The undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
(B) The Company has not made any other representations or warranties to the undersigned with respect to the Company or rendered any investment advice.
(C) The undersigned has knowledge and experience in financial, investment, and business matters and is capable of evaluating the merits and risks of the prospective investment in the securities of the Company. The undersigned has consulted with such independent legal counsel or other advisers as deemed appropriate to assist the undersigned in evaluating the proposed investment in the Company.
(D) The undersigned represents that he or she (i) has adequate means of providing for current financial needs and possible personal contingencies and has no need for liquidity of investment in the Company; (ii) can afford (a) The Corporation has made available all information which the undersigned has requested in connection with the purchase to hold unregistered securities for an indefinite period of time and (b) to sustain a complete loss of the Shares entire amount of the subscription; and (iii) has not made an excessive overall commitment to investments that are not readily marketable.
(E) The undersigned understands that the Warrants offer and sale of the Common Stock is made without the use of an offering memorandum and the undersigned has been afforded an the opportunity to ask questions of and receive answers from the Corporation officers and/or directors of the Company acting on its behalf concerning the terms and conditions of the purchase of the Shares this transaction and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished. The undersigned has been provided, and availed himself or herself of such opportunity to the undersigned requires no additional information extent considered appropriate to evaluate permit evaluation of the merits and risks of an investment in the CorporationCompany. It is understood that all documents, records, and books pertaining to this investment have been made available for inspection and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cF) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at shares of Common Stock have not been registered under the direction of the Board of Directors of the Corporation Act in Reliance on an exemption for transactions by an issuer not involving a public offering and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such further understands that the undersigned is able to bear purchasing the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss Common Stock without being furnished any prospectus setting forth all of the entire investment in information that may be required to be furnished under the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsAct.
(eG) The Shares and the Warrants shares of Common Stock being subscribed are being acquired solely for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Actundersigned for personal investment and not with a view to, or for resale in connection with, any distribution.
(H) The undersigned represents and agrees that the undersigned will not be transferred by himsell, her transfer, pledge, or it in violation otherwise dispose of or encumber the shares except pursuant to the applicable rules and regulations under the Act or applicable state securities laws; prior to any such sale, transfer, pledge, disposition, or encumbrance, the then undersigned will, upon request, furnish the Company and its transfer agent with an opinion of counsel satisfactory to the Company in form and substance that registration under the Act and any applicable rules or regulations thereunderstate securities laws is not required.
(fI) The undersigned hereby agrees that the Company may insert the following or similar legend on the face of the Common Stock to be issued, if it is aware that hisrequired to comply with the Act or state securities laws: These securities have not been registered under the Securities Act of 1933, her as amended (Act), or its rights any state securities laws and may not be sold or otherwise transferred or disposed of except pursuant to transfer the Shares and the Warrants are restricted by an effective registration statement under the Act and any applicable state securities laws, that the Warrants are not transferable without prior consent or pursuant to an opinion of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring counsel satisfactory to counsel to the restrictions on transfer thereof resulting Company that an exemption from their issuance without registration under the act and any applicable state securities laws is available. The undersigned certifies that each of the foregoing representations and to any restriction on transfer warranties set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provision.
subsections (gA) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss through (I) inclusive of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all Section 3 are true as of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(ai) The Corporation has made available all information which the undersigned can bear the economic risk of losing the undersigned’s entire investment;
(ii) the undersigned is acquiring the Units for its own account and not with a view to, or for resale in connection with, a distribution of the Units, or of the Common Shares or Warrants included in the Units, in violation of the Securities Act of 1933, as amended (the “Securities Act”);
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the undersigned’s investment in the Units will not cause such overall commitments to become excessive;
(iv) the undersigned’s financial condition is such that the undersigned is under no present or contemplated future need to dispose of any portion of the Units to satisfy any existing or contemplated undertaking, need or indebtedness;
(v) the undersigned has requested adequate means of providing for the undersigned’s current needs and personal contingencies and has no need for liquidity in connection with the purchase undersigned’s investment in the Units; and
(vi) the undersigned has sufficient knowledge and experience in business and financial matters to evaluate, and has evaluated, the merits and risks of this investment.
(b) The address set forth below on the Shares signature page of this Subscription Agreement is the undersigned’s true and the Warrants correct principal office, and the undersigned has been afforded no present intention of relocating its principal office to any other state or jurisdiction.
(c) The undersigned is an opportunity to ask questions “accredited investor” as that term is defined in Rule 501 of and receive answers from Regulation D, as promulgated under the Corporation concerning Securities Act because the terms and conditions undersigned meets one of the purchase following criteria (if the undersigned is not an “accredited investor”, place an “X” in the following blank: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the Shares and two most recent years, or joint income with the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy undersigned’s spouse in excess of information otherwise furnished by the Corporation; all $300,000 in each of the information so requested has been providedthose years, and the undersigned requires no has a reasonable expectation of reaching the same income level in the current year; or
(iii) An individual who is an officer or director of the Company; or
(iv) A corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; or
(v) A trust with total assets in excess of $5,000,000 not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D, as promulgated under the Securities Act; or
(vi) An entity in which all of the equity owners are accredited investors.
(d) The undersigned confirms that all documents, records and books pertaining to an investment in the Units that have been requested by the undersigned have been made available or delivered to the undersigned. Without limiting the foregoing, the undersigned has reviewed the Memorandum together with the following documents: (a) the Company’s Registration Statement (No. 333-118535) on Form S-1 filed with the SEC on August 25, 2004; (b) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003; (c) the Company’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2004, June 30, 2004 and September 30, 2004, respectively (the Form 10-Q for the nine months ended September 30, 2004 will be filed with the SEC between November 11, 2004 and November 15, 2004); (d) the Company’s Proxy Statement on Schedule 14A relating to the Company’s Annual Meeting of Stockholders on June 16, 2004; (e) the Company’s Current Reports on Form 8-K dated each of February 11, 2004, August 26, 2004 and August 27, 2004; and (e) any other documents included with the Memorandum, and the undersigned has had the opportunity to discuss the acquisition of the Units with the Company. The undersigned has obtained or been given access to all information concerning the Company that the undersigned has requested. As a result of its review of the Company, including the review of the materials provided to the undersigned, the undersigned understands, among other things, the following: the Company has limited financial resources, has had periods when it has incurred negative cash flow, and has had periods when it has not operated at a profit; and the Company has not concurrently, and may not in the future, receive additional investment funds. The undersigned further represents that the undersigned is cognizant of the operations, financial condition and capitalization of the Company; is cognizant of the intended use of proceeds from this financing; and has available full information concerning the Company’s affairs to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the WarrantsUnits.
(e) The Shares undersigned has had the opportunity to ask questions of, and receive answers from, the Warrants are being acquired for Company concerning the terms of an investment in the Units and to receive additional information necessary to verify the accuracy of the information delivered to the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing issuance of the Shares Units has not been registered under the Securities Act or any state securities laws in reliance on an exemption for private offerings and the Warrants purchased will bear restrictive legends referring no U.S. federal or state agency has made any finding or determination as to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles fairness of Incorporation, as amended, this investment or any applicable Bylaw recommendation or contract provisionendorsement of the offering of the Units.
(g) The undersigned recognizes acknowledges that, in making the decision to purchase the Units, it has relied solely upon independent investigations made by it.
(h) The undersigned has the full right, power and authority to enter into this Subscription Agreement and to carry out and consummate the transactions herein. This Subscription Agreement constitutes the legal, valid and binding obligation of the undersigned.
(i) The undersigned represents that the Corporation has little financial and operating history and the an investment in the Units is a suitable investment for the undersigned.
(j) The undersigned acknowledges and is aware that the following legend will be imprinted on the certificate(s) representing the Common Shares and the Warrants is speculative and involves a high degree of risk of loss subscribed to by the undersigned (including those Common Shares exercisable upon exercise of the entire investment in the CorporationWarrants): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ARE ‘RESTRICTED SECURITIES’ AS THAT TERM IS DEFINED IN RULE 144 UNDER THE SECURITIES ACT. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the WarrantsTHE SECURITIES MAY NOT BE OFFERED FOR SALE, includingSOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, but not limited toOR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY THROUGH REASONABLE MEANS AS DETERMINED BY THE COMPANY, 2004INCLUDING AN OPINION OF SELLER’S COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY.”
(hk) The undersigned acknowledges and is aware of the following, in addition to other information included in the information provided to the undersigned:
(i) The Shares Units and the securities included in the Units constitute a speculative investment and involve a high degree of risk of loss by the undersigned of the undersigned’s total investment.
(ii) There are substantial restrictions on the transferability of the Units. The Units, the Common Shares, the Warrants will and the Common Shares issuable upon exercise of the Warrants cannot bebe transferred, pledged, hypothecated, sold or otherwise disposed of unless they are registered under the Securities Act, or an exemption from such registration is available and established to the satisfaction of the Company; except as provided in Section 3 below, investors in the Corporation Offering have no rights to require that any transfer of the Shares and the Warrants be, Units be registered under the Act or Securities Act; there is a limited public market for the Securities Exchange Act of 1934Company’s Common Shares; and accordingly, as amended, and the undersigned may have to hold the Shares and the Warrants Units indefinitely, ; and it may not be possible for the undersigned to liquidate the undersigned’s investment in the Corporation;Company.
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vil) The undersigned understands and agrees that the Company is a resident relying upon the accuracy, completeness and truth of the State set forth on undersigned’s representations, warranties, agreements and certifications contained in this Subscription Agreement, in determining the signature page hereto.
(i) undersigned’s suitability as an investor in the Company and in establishing compliance with federal and state securities laws. The undersigned understands that any incomplete, inaccurate or untruthful response, or the breach of the undersigned’s representations, warranties, agreements or certifications, may result in the undersigned or the Company, or both, being in violation of federal or state securities laws, and any person, including the Company, who suffers damage as a result may have a claim against the undersigned for damages. The undersigned also acknowledges that the undersigned is indemnifying the Company and others for any such losses in accordance with Section 5 of this Subscription Agreement. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate in all material respects as of this the date hereof and shall survive such date. If in any respect such representations the delivery of the subscription amount and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons thereforcompleted Subscription Agreement.
Appears in 1 contract
Sources: Subscription and Registration Rights Agreement (Warren Resources Inc)
Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to to, and agrees with, the Corporation as follows:
(ab) The Corporation has made available all information which the undersigned has requested in connection with the purchase adequate means of the Shares providing for current needs and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been providedpossible contingencies, and the undersigned requires anticipates no additional information to evaluate the merits and risks of an investment need now or in the Corporationforeseeable future to sell the Shares.
(bc) The undersigned has such knowledge and experience in financial and business matters that makes the undersigned is capable of evaluating the merits and risks of acquisition of investment in the Shares and the Warrants Corporation and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsdecision.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding aware that no federal or state agency has passed upon the Shares and or made any finding or determination concerning the Warrants for an indefinite period fairness of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrantsthis investment.
(e) The Shares undersigned has had an opportunity to ask questions of and receive answers from representatives of the Warrants are being acquired for Corporation, concerning the terms and conditions of this investment and all such questions have been answered to the full satisfaction of the undersigned's own account for investment. Such representatives have not, however, rendered any investment advice to the undersigned with no intention respect to the suitability of distributing or selling any portion thereof within an investment in the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunderShares.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and for which the undersigned hereby subscribes will be acquired for the undersigned’s own account, for investment only and not offer for sale, sell with a view toward resale or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without distribution in a manner which would require registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisionSecurities Act.
(g) The undersigned recognizes that has been made aware by the Corporation has little financial and operating history and the that investment in the shares of Shares and of the Warrants is speculative and Corporation involves a high degree of risk of and the possible loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004total amount invested.
(h) The undersigned acknowledges has received and is aware reviewed a copy of the following:
(i) The Shares Term Sheet and the Warrants will not be, and investors in the Corporation have no rights to require related Risk Factors that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in provide certain information about the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of , the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone significant risks attendant to an investment in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoShares.
(i) The foregoing undersigned acknowledges that neither the Corporation nor any representative of the Corporation has made any representations or warranties in respect of the Corporation business, including, without limitation the value of the Valera Agreement (as defined below) or the right to receive royalty payments thereunder, or any representation regarding Indevus Pharmaceuticals, Inc. (“Indevus”), its subsidiary, Valera Pharmaceuticals, Inc. (“Valera”) or their respective business and warrantiesproducts. The undersigned acknowledges and agrees that the value of the Shares is directly correlated to and dependent upon the receipt of distributions by the Corporation from Hydron Royalty Partnership Ltd., LLLP, a limited liability partnership (the “Partnership”), of which it holds a 50.001% partnership interest and all other statements contained elsewhere in this Agreementserves as general partner, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior pursuant to the terms of the Limited Liability Limited Partnership Agreement of the Partnership (the “Partnership Agreement”) derived from payments that may be paid to the Partnership from time to time pursuant to the terms of that certain agreement (the “Valera Agreement”) originally between GP Strategies Corporation (f/k/a National Patent Development Corporation's acceptance ) and the Corporation, then known as Dento-Med Industries, Inc. The Valera Agreement is a cross-licensing agreement that requires the payment of this subscription, royalties by the Corporation and Valera in an amount equal to 5% of net sales of certain products produced by the other party with the use of the Hydron polymer.
(j) The undersigned shall give immediate written notice acknowledges that the Corporation has no direct information regarding the likelihood for the successful development and marketing of such fact products for which royalty payments may be made to the Corporation, specifying other than publicly available information disseminated by Indevus and Valera on their website (▇▇▇.▇▇▇▇▇▇▇.▇▇▇) and in reports filed by Indevus with the Securities and Exchange Commission (▇▇▇.▇▇▇.▇▇▇) for which representations and warranties or statements are not true and accurate and the reasons thereforCorporation disavows any responsibility.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation as followsCompany:
(a) The Corporation has made available all information which If the undersigned is acting on behalf of another person, the undersigned has requested all right and authority, in connection with the purchase undersigned’s capacity as an officer, general partner, member, trustee, executor or other representative of such person to make such decision to invest in the Shares and the Warrants to execute and deliver this Subscription Agreement on behalf of such person, and this Subscription Agreement has been duly authorized, executed and delivered on behalf of the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms constitutes a valid and conditions binding agreement of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been providedundersigned, and the undersigned requires no additional information to evaluate the merits and risks of an investment enforceable against it in the Corporationaccordance with its terms.
(b) The undersigned has such knowledge and experience in financial and business matters that If the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; purchasing in a fiduciary capacity, the undersigned has reviewed all due authority to execute the attached signature page and thereby legally to bind the trust or other entity of which the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrantsundersigned is trustee, legal representative or authorized agent.
(c) The undersigned acknowledges that has received and had the Corporation's counsel has prepared this Agreement at the direction opportunity to review a copy of the Board of Directors of Prospectus. Other than the Corporation and he, she or it has received no representation from information contained in the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. FurthermoreProspectus, the undersigned has obtained, to not relied on any information provided by the extent he, she Company or it deems necessary, any affiliate thereof in connection with the undersigned's own professional advice ’s investment decision (including without limitation with respect to the risks tax or other economic considerations involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsthis investment).
(d) The undersigned's financial condition is such that If the undersigned is able to bear the risk of holding the Shares and the Warrants a private investment fund relying on Section 3(c)(1) or 3(c)(7) for an indefinite period exclusion from the definition of time and investment company under the risk 1940 Act, the acquisition of loss securities in this offering by the undersigned shall not cause the undersigned to own after such acquisition, together with any entities it controls (i.e., an entity of which it owns more than 25% of such other company's voting securities), more than three percent (3%) of the entire investment in outstanding voting securities of the Corporation. The undersigned believes Company, assuming that a total of 20,192,517 voting securities of the investment in Company, which consists of 15,452,797 shares of the Shares and the Warrants is suitable for himCompany’s common stock, her or is based upon his, her or its investment objectives and financial needspar value $0.01 per share, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity 4,739,720 shares of investment with respect the Company’s term preferred stock, par value $0.01 per share, will be outstanding on the date of such acquisition before giving effect to the Shares and the Warrantssuch acquisition.
(e) The Shares undersigned hereby acknowledges that the Company seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of such efforts, the undersigned hereby represents, warrants and agrees that to the best of the undersigned’s knowledge, based upon reasonable diligence and investigation, no consideration that the undersigned has contributed or will contribute to the Company has been or shall be derived from, or related to, any activity that is in contravention of any federal, state or international laws and regulations, including anti-money laundering laws and regulations. The undersigned hereby represents that neither it nor any of its owners or affiliates is a person or entity named on a list maintained by the Office of Foreign Asset Control (“OFAC”) of the U.S. Department of the Treasury, nor is the undersigned or any of its owners or affiliates a person or entity with whom dealings are prohibited under any OFAC regulations. Federal regulations and Executive Orders administered by OFAC prohibit, among other things, the engagement in transactions with, and the Warrants are being acquired for provision of services to, certain foreign countries, territories, entities and individuals. The lists of OFAC prohibited countries, territories, persons and entities, including without limitation the undersigned's own account for investmentSpecially Designated Nationals and Blocked Nations List, can be found on the OFAC website at <▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/ofac>. In addition, the programs administered by OFAC (the “OFAC Programs”) prohibit dealing with no intention individuals[1] or entities in certain countries regardless of distributing whether such individuals or selling any portion thereof within entities appear on the meaning of the ActOFAC lists. 1 These individuals include specially designated nationals, specially designated narcotics traffickers and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunderother parties subject to OFAC sanctions and embargo programs.
(f) The To the best of the undersigned’s knowledge, and except as described in a letter to the Company delivered in conjunction with this Subscription Agreement, none of (a) the undersigned, (b) any person controlling or controlled by the undersigned, (c) if the undersigned is aware that hisa privately-held entity, her any person having a beneficial interest in the undersigned or its rights to transfer (d) any person for whom the Shares and undersigned is acting as agent or nominee in connection with this investment is a country, territory, individual or entity named on an OFAC list, or a person or entity prohibited under the Warrants are restricted by the Act and applicable state securities laws, OFAC Programs. Please be advised that the Warrants are Company may not transferable without prior consent of accept any amounts from a subscriber if such subscriber cannot make the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer representation set forth in the Corporation's Articles preceding sentence. The undersigned agrees to promptly notify the Company should the undersigned become aware of Incorporationany change in the information set forth in these representations. The undersigned understands and acknowledges that, as amendedby law, or the Company may be obligated to “freeze the account” of the undersigned, including without limitation by prohibiting additional subscriptions from the undersigned, declining any applicable Bylaw or contract provisionredemption requests and segregating assets in the account in compliance with governmental regulations, and the Company may also be required to report such action and to disclose the undersigned’s identity to OFAC.
(g) The undersigned recognizes understands and agrees that the Corporation has little financial and operating history and the investment in the Shares and the Warrants if at any time it is speculative and involves a high degree of risk of loss discovered that any of the entire investment foregoing representations set forth in Sections 4(e) and (f) above are incorrect, or if otherwise required by applicable law or regulation related to money laundering and similar activities, the CorporationCompany may, in its sole discretion, undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to freezing, segregating or requiring the undersigned to sell such undersigned’s Shares. The undersigned has taken full cognizance of and understands all of the risk factors related agrees to provide to the purchase of Company any additional information regarding the Shares undersigned that the Company deems necessary or appropriate to ensure compliance with all laws and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" regulations concerning money laundering and similar activities that may apply now or in the Offering Memorandum of the Corporation dated January 21, 2004future.
(h) The undersigned acknowledges and is aware To the best of the following:undersigned’s knowledge, none of (a) the undersigned, (b) any person controlling or controlled by the undersigned, (c) if the undersigned is a privately-held entity, any person having a beneficial interest in the undersigned or (d) any person for whom the undersigned is acting as agent or nominee in connection with this investment is a senior foreign political figure2, or any immediate family3 member or close associate4 of a senior foreign political figure, as such terms are defined in the footnotes below.
2 A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior executive of a foreign government-owned corporation. In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. 3 “Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children and in-laws.
4 A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic and international financial transactions on behalf of the senior foreign political figure.
(i) If the undersigned is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the undersigned receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the undersigned represents and warrants to the Company that (a) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities, (b) the Foreign Bank maintains operating records related to its banking activities, (c) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities and (d) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate.
(j) The Shares undersigned acknowledges that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), the Company is required to obtain, verify and record information that identifies the Warrants undersigned, which information includes the name and address of the undersigned and other information that will not beallow the Company to identify the undersigned in accordance with the Patriot Act. Accordingly, the Company may request information from the undersigned that will help the Company to identify the undersigned (and investors in the Corporation have no rights case of subscribers that are entities, the undersigned’s beneficial owners), including without limitation the Company’s physical address, tax identification number, organizational documents, certificate of good standing, license to require do business, or any other information that the Shares Company deems necessary. The undersigned agrees to provide to the Company any additional information regarding the undersigned that the Company deems necessary or appropriate to ensure compliance with the Patriot Act, or any successor law, whether now or in the future.
(k) Except as set forth in this Subscription Agreement, no representations or warranties have been made to the undersigned by the Company, or any director, officer, employee, agent or affiliate of any of them.
(l) The undersigned is not an affiliate of the Company and the Warrants beis not an underwriter, registered under the Act or as defined in Section 2(a)(11) of the Securities Exchange Act of 19341933, as amended, with respect to the Shares.
(m) The undersigned, if a natural person, has accurately set forth his, her or its state or country of residence on the signature pages hereto where indicated. The undersigned, if a corporation, partnership, trust or other entity, has accurately set forth such undersigned’s jurisdiction of organization on the signature pages hereto where indicated.
(n) The undersigned is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions with respect to, investments in securities presenting an investment decision like that involved in the purchase of the Shares, including investments in securities issued by the Company and investments in comparable companies. The undersigned understands that nothing in this Subscription Agreement or any other materials made available to the undersigned may have to hold in connection with the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering purchase and sale of the Shares constitutes legal, tax or investment advice. The undersigned has consulted such legal, tax and the Warrantsinvestment advisors as it, nor in its sole discretion, has any state deemed necessary or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, appropriate in connection with this investment, indicated that the Corporation will attain any specified level its purchase of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page heretoShares.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to to, and agrees with, the Corporation Company as follows:
(a) The Corporation has made available all information which (i) the undersigned has requested in connection with can bear the purchase economic risk of losing the Shares and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an undersigned’s entire investment in the Shares of Common Stock;
(ii) the undersigned is acquiring the Shares for investment purposes only and the Warrants.
(c) The Shares must be held by the undersigned acknowledges that without sale, transfer, or other disposition for an indefinite period unless the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase transfer of the Shares subsequently are, registered under the U.S. federal securities laws or unless exemptions from registration are available;
(iii) the undersigned’s overall commitments to investments that are not readily marketable is not disproportionate to the undersigned’s net worth and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the ’s investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.will not cause such overall commitments to become excessive;
(div) The the undersigned's ’s financial condition is such that the undersigned is able under no present or contemplated future need to bear the risk dispose of holding any portion of the Shares and to satisfy any existing or contemplated undertaking, need, or indebtedness;
(v) the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for of providing for the undersigned’s current financial needs and personal contingencies and has no need for liquidity of in the undersigned’s investment with respect to in the Shares and the Warrants.Shares;
(evi) The Shares the undersigned has sufficient knowledge and experience in business and financial matters to evaluate and has evaluated the Warrants are being acquired for the undersigned's own account for merits and risks of this investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.; and
(fvii) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and the undersigned will not offer for sale, sell or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares oil and the Warrants purchased will bear restrictive legends referring gas ventures carry additional risks unique to the restrictions on transfer thereof resulting from their issuance without registration under oil and gas industry and that the securities laws undersigned has had the opportunity to review the attached offering with qualified energy experts and has been afforded the opportunity to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisioninquire therein.
(gb) The undersigned recognizes that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those address set forth under below on the caption "Risk Factors" in signature page of this Subscription Agreement is the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges undersigned’s true and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any timecorrect residence, and the undersigned has not relied upon no present intention of becoming a resident of any such statement made by anyone other state or jurisdiction.
(c) The undersigned is an “accredited investor” as that term is defined in Rule 501 of Regulation D, as promulgated under the Securities Act of 1933, as amended (the “Securities Act”), because the undersigned meets one of the following criteria (IF THE UNDERSIGNED IS NOT AN “ACCREDITED INVESTOR”, PLACE AN “X” IN THE FOLLOWING BLANK: ):
(i) An individual with a net worth, individually or jointly with the undersigned’s spouse, of $1,000,000; or
(ii) An individual with income in excess of $200,000 in each of the two most recent years, or joint income with the undersigned’s spouse in excess of $600,000 in each of those years, and the undersigned has a reasonable expectation of reaching the same income level in the making current year; or
(iii) An individual who is an officer or director of this investment;the Company; or
(iv) No general advertising A corporation, Massachusetts or solicitation has been employed by similar business trust, or partnership, not formed for the Corporation specific purpose of acquiring the securities offered, with total assets in connection with the sale excess of the Shares and the Warrants hereby offered by the Corporation;$3,000,000; or
(v) The relative rightsA trust with total assets in excess of $3,000,000 not formed for the specific purpose of acquiring the securities offered, designations, limitations and preferences whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the Shares and the Warrants are as set forth in the Corporation's Articles of IncorporationRegulation D, as amended, a copy of which has been previously provided to promulgated under the undersignedSecurities Act; andor
(vi) The undersigned is a resident An entity in which all of the State set forth on the signature page heretoequity owners are accredited investors.
(id) The foregoing representations undersigned confirms that all documents, records and warranties, and all other statements contained elsewhere books pertaining to an investment in this Agreement, are true and accurate as of this date and shall survive such date. If in any respect such representations and warranties the Shares that have been requested by the undersigned have been made available or statements shall not be true and accurate prior delivered to the Corporation's acceptance of this subscriptionundersigned. Without limiting the foregoing, the undersigned shall give immediate written notice has (i) had the opportunity to discuss the acquisition of such fact to the CorporationShares with the Company, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.and
Appears in 1 contract
Sources: Subscription Agreement
Representations and Warranties of the Undersigned. The undersigned hereby acknowledges, represents and warrants to to, and agrees with, the Corporation as follows:
(ab) The Corporation has made available all information which the undersigned has requested in connection with the purchase adequate means of the Shares providing for current needs and the Warrants and the undersigned has been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been providedpossible contingencies, and the undersigned requires anticipates no additional information to evaluate the merits and risks of an investment need now or in the Corporationforeseeable future to sell the Shares.
(bc) The undersigned has such knowledge and experience in financial and business matters that makes the undersigned is capable of evaluating the merits and risks of acquisition of investment in the Shares and the Warrants Corporation and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(c) The undersigned acknowledges that the Corporation's counsel has prepared this Agreement at the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needsdecision.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding aware that no federal or state agency has passed upon the Shares and or made any finding or determination concerning the Warrants for an indefinite period fairness of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrantsthis investment.
(e) The Shares undersigned has had an opportunity to ask questions of and receive answers from representatives of the Warrants are being acquired for Corporation, concerning the terms and conditions of this investment and all such questions have been answered to the full satisfaction of the undersigned's own account for investment. Such representatives have not, however, rendered any investment advice to the undersigned with no intention respect to the suitability of distributing or selling any portion thereof within an investment in the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunderShares.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, that the Warrants are not transferable without prior consent of the Corporation, and for which the undersigned hereby subscribes will be acquired for the undersigned’s own account, for investment only and not offer for sale, sell with a view toward resale or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; the undersigned understands that the certificates representing the Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without distribution in a manner which would require registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of Incorporation, as amended, or any applicable Bylaw or contract provisionSecurities Act.
(g) The undersigned recognizes that has been made aware by the Corporation has little financial and operating history and the that investment in the shares of Shares and of the Warrants is speculative and Corporation involves a high degree of risk of and the possible loss of the entire investment in the Corporation. The undersigned has taken full cognizance of and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004total amount invested.
(h) The undersigned acknowledges has received and is aware reviewed a copy of the following:Term Sheet and related Risk Factors that provide certain information about the Corporation, the offering of the Shares and the significant risks attendant to an investment in the Shares.
(i) The Shares and the Warrants will not be, and investors in undersigned acknowledges that neither the Corporation have no rights to require that nor any representative of the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency Corporation has made any finding representations or determination warranties in respect of the Corporation business, including, without limitation the value of the Valera Agreement (as defined below) or the right to receive royalty payments thereunder, or any representation regarding Indevus Pharmaceuticals, Inc. (“Indevus”), its subsidiary, Valera Pharmaceuticals, Inc. (“Valera”) or their respective business and products. The undersigned acknowledges and agrees that the fairness value of the Shares is directly correlated to and dependent upon the receipt of distributions by the Corporation from Hydron Royalty Partnership Ltd., LLLP, a limited liability partnership (the “Partnership”), of which it holds a 50.001% partnership interest and serves as general partner, pursuant to the terms of the offering and sale Limited Liability Limited Partnership Agreement of the Shares Partnership (the “Partnership Agreement”) derived from payments that may be paid to the Partnership from time to time pursuant to the terms of that certain agreement (the “Valera Agreement”) originally between GP Strategies Corporation (f/k/a National Patent Development Corporation) and the WarrantsCorporation, nor has any state or federal agency recommended or endorsed then known as Dento-Med Industries, Inc. The Valera Agreement is a cross-licensing agreement that requires the Shares or payment of royalties by the Warrants;Corporation and Valera in an amount equal to 5% of net sales of certain products produced by the other party with the use of the Hydron polymer.
(iiij) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated The undersigned acknowledges that the Corporation will attain has no direct information regarding the likelihood for the successful development and marketing of products for which royalty payments may be made to the Corporation, other than publicly available information disseminated by Indevus and Valera on their website (▇▇▇.▇▇▇▇▇▇▇.▇▇▇) and in reports filed by Indevus with the Securities and Exchange Commission (▇▇▇.▇▇▇.▇▇▇) for which the Corporation disavows any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;responsibility.
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as set forth in the Corporation's Articles of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vik) The undersigned is acknowledges that dividends with respect to the Shares shall be payable only to the extent of distributions made by Partnership and that a resident portion of up to five percent (5%) of the State net amount of up to any such distributions may be reserved and used for general operating and administrative expenses of the Corporation.
(l) The undersigned, if a corporation, partnership, trust or other form of business entity, is authorized and otherwise duly qualified to purchase and hold the subscribed for Shares. Such entity has its principal place of business as set forth on the signature page heretohereof and if such entity has been formed for the specific purpose of acquiring the Shares subscribed to hereunder, it hereby agrees to supply any additional written information that may be required by the Corporation.
(im) The foregoing representations All of the information that the undersigned has heretofore furnished or which is set forth in Paragraph 7 and warranties, and all other statements contained elsewhere in this Subscription Agreement, are true including without limitation, those with respect to the undersigned’s financial position and accurate business status is correct and complete as of the date of this date and shall survive Subscription Agreement. In the event that there is a material change in such date. If in any respect such representations and warranties or statements shall not be true and accurate information prior to the Corporation's acceptance of time the Shares are sold to the Subscriber pursuant to this subscriptionSubscription Agreement, the undersigned shall give immediate written notice of such fact will immediately furnish the revised or corrected information to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Representations and Warranties of the Undersigned. The undersigned undersigned, in order to induce the Company to accept this Offer, hereby warrants and represents and warrants to the Corporation as follows:
(aA) The Corporation undersigned has sufficient liquid assets to sustain a loss of the undersigned's entire investment.
(B) The undersigned represents that it is an Accredited Investor as that term is defined in Regulation D promulgated under the Act. In general, an "accredited investor" is an organization described in Section 501(c)(8) of the Internal Revenue Code, a corporation, Massachusetts or similar business trust, or company, not formed for the specific purpose of acquiring the securities offered, with assets in excess of $5,000,000.
(C) The Company has not made available all information which any representations or warranties to the undersigned with respect to the Company, its profitability or future performance or rendered any investment advice except as contained herein.
(D) The undersigned has requested not authorized any person or institution to act as its Purchaser Representative (as that term is defined in Regulation D) in connection with this transaction. The undersigned has such knowledge and experience in financial, investment and business matters that it is capable of evaluating the purchase merits and risks of the Shares prospective investment in the securities of the Company. The undersigned has consulted with such independent legal counsel or other advisers as it has deemed appropriate to assist the undersigned in evaluating its proposed investment in the Company.
(E) The undersigned represents that it (i) has adequate means of providing for its current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Warrants Company; (ii) can afford (a) to hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the subscription; and (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive.
(F) The undersigned has been afforded an the opportunity to ask questions of of, and receive answers from the Corporation officers and/or directors of the Company acting in its behalf concerning the terms and conditions of the purchase of the Shares this transaction and the Warrants and concerning the Corporation and the opportunity to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested furnished; and has been provided, and availed itself of such opportunity to the undersigned requires no additional information extent it considers appropriate in order to permit it to evaluate the merits and risks of an investment in the CorporationCompany. It is understood that all documents, records and books pertaining to this investment have been made available for inspection, and that the books and records of the Company will be available upon reasonable notice for inspection by investors during reasonable business hours at its principal place of business.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.
(cG) The undersigned acknowledges that the Corporation's counsel Shares have not been registered under the Act in reliance on an exemption for transactions by an issuer not involving a public offering.
(H) The undersigned further acknowledges that this Offer has prepared this Agreement at not been passed upon or the direction merits thereof endorsed or approved by any state or federal authorities.
(I) The Shares being subscribed for are being acquired solely for the account of the Board undersigned for personal investment and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the undersigned means that no other person has a beneficial interest in the Shares subscribed for hereunder, and that no other person has furnished or will furnish directly or indirectly, any part of Directors or guarantee the payment of any part of the Corporation and he, she or it has received no representation from consideration to be paid to the Corporation's counsel about the personal tax consequences of this AgreementCompany in connection therewith. The undersigned has relied upon his, her does not intend to dispose of all or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase any part of the Shares and the Warrants and has not relied upon any opinion of the CorporationShares, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved except in compliance with the investment in the Shares and the Warrants, and the suitability provisions of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs.
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect to the Shares and the Warrants.
(e) The Shares and the Warrants are being acquired for the undersigned's own account for investment, with no intention of distributing or selling any portion thereof within the meaning of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.
(f) The undersigned is aware that his, her or its rights to transfer the Shares and the Warrants are restricted by the Act and applicable state securities laws, laws and understands that the Warrants Shares are not transferable without prior consent being offered pursuant to a specific exemption under the provisions of the CorporationAct, which exemption(s) depends, among other things, upon the compliance with the provisions of the Act.
(J) The undersigned understands that sales of the Shares may be subject to restrictions imposed under state securities laws. The undersigned further represents and agrees that the undersigned will not offer for sell, transfer, pledge or otherwise dispose of or encumber the Shares, except pursuant to the applicable rules and regulations under applicable state securities laws, and prior to any such sale, sell transfer, pledge, disposition or otherwise transfer the Shares or the Warrants without complying with all applicable provisions; encumbrance, the undersigned understands will, if requested, furnish the Company and its transfer agent with an opinion of counsel satisfactory to the Company in form and substance that registration under applicable state securities laws is not required.
(K) The undersigned hereby agrees that the Company may place the following or similar legend on the face of the certificates representing the evidencing Shares and the Warrants purchased will bear restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration if required in compliance with state securities laws: "These securities have not been registered under the securities laws and to any restriction on transfer set forth in the Corporation's Articles Securities Act of Incorporation1933, as amended, or any state securities laws and may not be sold or otherwise transferred or disposed of except pursuant to an effective registration statement under any applicable Bylaw federal and state securities laws, or contract provisionan opinion of counsel satisfactory to counsel to the Company that an exemption from registration is available."
(gL) The undersigned recognizes certifies that the Corporation has little financial and operating history and the investment in the Shares and the Warrants is speculative and involves a high degree of risk of loss each of the entire investment in the Corporation. The undersigned has taken full cognizance of foregoing representations and understands all of the risk factors related to the purchase of the Shares and the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum of the Corporation dated January 21, 2004.
(h) The undersigned acknowledges and is aware of the following:
(i) The Shares and the Warrants will not be, and investors in the Corporation have no rights to require that the Shares and the Warrants be, registered under the Act or the Securities Exchange Act of 1934, as amended, and the undersigned may have to hold the Shares and the Warrants indefinitely, and it may not be possible for the undersigned to liquidate the investment in the Corporation;
(ii) No state or federal agency has made any finding or determination as to the fairness of the terms of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated that the Corporation will attain any specified level of profit or loss at any time, and the undersigned has not relied upon any such statement made by anyone in the making of this investment;
(iv) No general advertising or solicitation has been employed by the Corporation in connection with the sale of the Shares and the Warrants hereby offered by the Corporation;
(v) The relative rights, designations, limitations and preferences of the Shares and the Warrants are as warranties set forth in the Corporation's Articles subsections (A) through (K) inclusive of Incorporation, as amended, a copy of which has been previously provided to the undersigned; and
(vi) The undersigned is a resident of the State set forth on the signature page hereto.
(i) The foregoing representations and warranties, and all other statements contained elsewhere in this AgreementSection 4, are true and accurate as of this the date hereof and shall survive such date. If in any respect such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance of this subscription, the undersigned shall give immediate written notice of such fact to the Corporation, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Sources: Subscription and Debt Conversion Agreement (Vitech America Inc)
Representations and Warranties of the Undersigned. The undersigned hereby represents and warrants to the Corporation as followsCompany that:
(a) The Corporation undersigned has sufficient available financial resources to provide adequately for the undersigned's current needs, including possible contingencies, and can bear the economic risk of a complete loss of the investment hereunder without materially affecting the undersigned's financial condition;
(b) The undersigned has received, and has read and reviewed with the undersigned's Purchaser Representative, designated on the Purchaser Representative Questionnaire (the "Purchaser Representative"), if any, and represents that the undersigned is familiar with this Agreement, the other Subscription Documents and the Memorandum accompanying these documents, including the risk factors set forth therein. The undersigned confirms that all documents, records and books pertaining to the investment in the Company and requested by the undersigned or the undersigned's Purchaser Representative have been made available all information which or have been delivered to the undersigned has requested in connection with and/or the purchase of the Shares and the Warrants undersigned's Purchaser Representative, and the undersigned has and/or the undersigned's Purchaser Representative have been afforded an opportunity to ask questions of and receive answers from the Corporation concerning the terms and conditions of the purchase of the Shares and the Warrants and concerning the Corporation and the opportunity to obtain any additional information necessary to verify the accuracy of information otherwise furnished by the Corporation; all of the information so requested has been provided, and the undersigned requires no additional information to evaluate the merits and risks of an investment in the Corporation.
(b) The undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of acquisition of the Shares and the Warrants and of making an informed investment decision with respect thereto; the undersigned has reviewed all of the information provided by the Corporation and by virtue of such review understands the merits and risks of an investment in the Shares and the Warrants.;
(c) The undersigned acknowledges that is an "Accredited Investor", as defined in Rule 501(a) of Regulation D, promulgated under the Corporation's counsel has prepared this Agreement at Securities Act of 1933, as amended (the direction of the Board of Directors of the Corporation and he, she or it has received no representation from the Corporation's counsel about the personal tax consequences of this Agreement. The undersigned has relied upon his, her or its own legal and tax counsel to the extent he, she or it deems necessary as to all matters and questions concerning the purchase of the Shares and the Warrants and has not relied upon any opinion of the Corporation, its counsel or accountants. Furthermore, the undersigned has obtained, to the extent he, she or it deems necessary, the undersigned's own professional advice with respect to the risks involved with the investment in the Shares and the Warrants, and the suitability of the investment in the Shares and the Warrants in light of his, her or its financial condition and investment needs"Securities Act").
(d) The undersigned's financial condition is such that the undersigned is able to bear the risk of holding the Shares and the Warrants for an indefinite period of time and the risk of loss of the entire investment in the Corporation. The undersigned believes that the investment in the Shares and the Warrants is suitable for him, her or is based upon his, her or its investment objectives and financial needs, and has adequate means for providing for current financial needs and personal contingencies and has no need for liquidity of investment with respect gives authority to the Shares Company to verify employment, bank accounts and other matters as the WarrantsCompany deems necessary.
(e) The Shares Company, through the Placement Agent and its representatives, has answered all inquiries that the Warrants are being acquired for undersigned and/or the undersigned's own account for investmentPurchaser Representative has put to them concerning the Company and its proposed activities, with no intention of distributing or selling any portion thereof within and the meaning Offering and sale of the Act, and will not be transferred by him, her or it in violation of the Act or the then applicable rules or regulations thereunder.Units;
(f) The undersigned is aware understands that his, her or its rights to transfer the Shares Units and the Warrants are restricted by securities included therein or issuable upon exercise thereof have not been registered under the Act and or applicable state securities laws, and that the Warrants are not transferable without prior consent issuance of the CorporationUnits and the securities included therein or issuable upon exercise thereof is being effectuated pursuant to an exemption from the registration requirements under the Act and such state securities laws, and that reliance on such exemption is based, in part, upon the undersigned will not offer for sale, sell or otherwise transfer information being supplied hereunder by the Shares or the Warrants without complying with all applicable provisionsundersigned; the undersigned also understands that the certificates representing the Shares and the Warrants purchased will bear substantially the following restrictive legends referring to the restrictions on transfer thereof resulting from their issuance without registration under the securities laws and to any restriction on transfer set forth in the Corporation's Articles of IncorporationLegend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, as amendedAS AMENDED, or any applicable Bylaw or contract provisionOR ANY STATE SECURITIES LAWS. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT FOR DISTRIBUTION OR RESALE. THEY MAY NOT BE SOLD, ASSIGNED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL FOR THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT.
(g) All the information set forth on the Confidential Purchaser Questionnaire attached hereto (the "Confidential Purchaser Questionnaire") which the undersigned has furnished the Company is correct and complete as of the date of this Agreement and, if there should be any material change in such information prior to the consummation of the undersigned's purchase of Units, the undersigned will immediately furnish such revised or corrected information to the Company in writing.
(h) The undersigned is acquiring the Units, for which the undersigned hereby subscribes, for the undersigned's own account, as principal, for investment purposes only and not with a view to the further resale or distribution of all or any part of such Units;
(i) The undersigned, if a corporation, partnership, trust or other form of business entity, is authorized and otherwise duly qualified to purchase and hold the Units and the securities included therein or issuable upon exercise thereof and such entity has not been formed for the specific purpose of acquiring the Units;
(j) The address set forth for the undersigned on the signature page hereof is the undersigned's true and correct residence or principal place of business, as applicable, and the undersigned has no present intention of becoming a resident of, or relocating its principal place of business to, any other state or jurisdiction;
(k) The undersigned acknowledges that if a "Purchaser Representative," as defined in Regulation D, has been utilized by the undersigned in evaluating the investment as contemplated hereby, (i) the undersigned has been advised by his Purchaser Representative as to the merits and risks of the investment in general and the suitability of the investment for the undersigned in particular; and (ii) the undersigned's Purchaser Representative has completed and executed the Purchaser Representative Questionnaire, and receipt of a copy of such completed and executed Purchaser Representative Questionnaire has been acknowledged in writing by the undersigned;
(l) The person, if any, executing the Purchaser Representative Questionnaire, a copy of which has been received by the undersigned, is acting and is hereby designated to act as the undersigned's Purchaser Representative in connection with the offer and sale of the Units to the undersigned. This designation of a Purchaser Representative was made with the knowledge of the representations and disclosures made in such Purchaser Representative Questionnaire;
(m) The undersigned acknowledges that if the assistance or advice of a Purchaser Representative is not required, the undersigned believes that the undersigned has sufficient knowledge and experience in financial and business matters generally to be capable of evaluating the merits and risks of this investment and, acknowledges further, that:
(i) The undersigned has considered that the undersigned may have to hold the proposed investment for an indefinite period of time and may have to bear a complete economic loss of such investment. The undersigned represents that the information contained in the Confidential Purchaser Questionnaire, which has been completed by the undersigned and delivered to the Company, is true and correct;
(ii) The purchase of the Units by the undersigned will be solely for the account of the undersigned and not for the account of any other person and will not be made with a view to the further resale or distribution thereof; and
(iii) The undersigned recognizes that the Corporation has little financial and operating history and proposed investment is being offered in a manner that is intended to comply with the investment in the Shares and the Warrants is speculative and involves a high degree requirements of risk Section 4(2) and/or Rule 506 of loss Regulation D of the entire investment in Act and that the Corporation. The undersigned has taken full cognizance of and understands all acceptance of the risk factors related to undersigned's Agreement has been induced by the purchase reliance of the Shares and Company on the Warrants, including, but not limited to, those set forth under the caption "Risk Factors" in the Offering Memorandum correctness of the Corporation dated January 21, 2004.representations contained herein; and
(hn) The undersigned acknowledges and is aware of the following:
(i) The Shares There are substantial restrictions on the transferability of the Units and the Warrants securities included therein or issuable upon exercise thereof and such securities will not bebe registered under the Act, and investors in the Corporation Company have no rights to require that the Shares Units and the Warrants be, securities included therein or issuable upon exercise thereof be registered under the Act or the Securities Exchange Act of 1934, as amended, and the Act. The undersigned may have be required to hold the Shares Units and the Warrants indefinitely, securities included therein or issuable upon exercise thereof for an indefinite period of time and it may not be possible for the undersigned to liquidate the investment in the CorporationCompany;
(ii) No federal or state or federal agency has made any finding or determination as to the fairness of the terms offering of Units for investment or any recommendation or endorsement of the offering and sale of the Shares and the Warrants, nor has any state or federal agency recommended or endorsed the Shares or the Warrants;Units; and
(iii) Neither the Corporation nor any of its officers, directors, employees, agents or advisors or others have, in connection with this investment, indicated There can be no assurance that the Corporation prior performance on the part of the Company or any Affiliate (as defined in Rule 405 promulgated under the Act), or of any other person, will attain in any specified level way indicate the predictable results of profit the ownership of the Units or loss at any time, and of the undersigned has not relied upon any such statement made by anyone in the making of this investment;Company.
(iv) No general advertising or solicitation has been employed by The Company shall incur certain costs and expenses and undertake other actions in reliance upon the Corporation in connection with the sale irrevocability of the Shares and subscription (following the Warrants hereby offered by three-day rescission period described in Paragraph 2(c) of this Agreement) for the Corporation;Units made hereunder.
(vo) The relative rightsIf the subscriber for Units is an entity (the "Entity"), designations, limitations the subscriber covenants and preferences undertakes to promptly notify the Company of any change of circumstances with respect to the Entity which would change the accuracy of the Shares and answers to any of the Warrants are as set forth questions specified in Question 18 or Question 19 of the Corporation's Articles Confidential Purchaser Questionnaire attached hereto, regardless of Incorporation, as amended, a copy of which has been previously provided to the undersigned; andwhen such change takes place.
(vip) The undersigned is a resident has responded "no" to each of the State set forth on questions specified in Question 20 of the signature page heretoConfidential Purchaser Questionnaire attached hereto and therefore represents that the subscriber is not a "Restricted Person."
(iq) The subscriber will deliver to the Company, promptly upon demand by the Company, any form, document, or other information in order to allow the Placement Agent to make such determinations as it deems advisable with respect to the availability for exemption from registration as an investment company, or with respect to any other matter as the Placement Agent may reasonably determine. The foregoing representations and warranties, and all other statements contained elsewhere in this Agreement, warranties are true and accurate as of this the date of delivery of the Subscription Price to the Company and shall survive such datedelivery. If If, in any respect respect, such representations and warranties or statements shall not be true and accurate prior to the Corporation's acceptance delivery of this subscriptionthe Subscription Price pursuant to Paragraph 1 hereof, the undersigned shall give immediate written notice of such fact to the CorporationCompany and to the undersigned's Purchaser Representative, if any, specifying which representations and warranties or statements are not true and accurate and the reasons therefor.
Appears in 1 contract
Sources: Subscription Agreement (Sandata Inc)