Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser has sufficient knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds; (b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of the Issuer in connection with the sale of the Bonds; (c) As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds; (d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission; (e) The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement; (f) The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12; (g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise; (h) The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations; (i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and (j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance of the Bonds.
Appears in 6 contracts
Sources: Bond Purchase Agreement, Bond Purchase Agreement, Bond Purchase Agreement
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser has sufficient is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business mattersmatters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, including purchase and ownership transferred, pledged, sold or otherwise disposed of obligations any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a nature similar distribution of the Mortgage Loans under the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Bonds to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds;Mortgage Loans.
(b) The Purchaser acknowledges represents and warrants to the Seller that no offering document, prospectus or official statement has been prepared by or on behalf as of the Issuer in connection with the sale date hereof, as of the Bonds;date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(c) As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(ei) The Purchaser is acquiring duly organized, validly existing and in good standing as a corporation under the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution laws of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) Maryland. The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;
(h) The Purchaser represents that it has all necessary full power and authority (corporate and otherwise) to enter into this Purchase and perform its obligations under the Program Documents.
(ii) This Agreement, the Master Servicing Agreement and to purchase the Bonds as contemplated herein Custodial Letter Agreement each has been duly authorized, executed and in delivered by the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the BondsPurchaser, and that each constitutes the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation agreement of the Purchaser, enforceable against the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and.
(jiii) As of the date hereofthe respective Purchase Price and Terms Letter and as of the respective Closing Date, there is no actionthe Purchase Price and Terms Letter has been duly authorized, suitexecuted and delivered by the Purchaser, proceeding or investigation before or by any California courtand the Purchase Price and Terms Letter constitutes the legal, public board or body pending or threatened to the actual knowledge valid and binding agreement of the Purchaser, wherein an unfavorable decisionenforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, ruling nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or finding would: (i) affect delivery of the existence Program Documents, nor the consummation of any of the Transactions herein or powers therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, (ii) enjoin or restrain the purchase conflict with, result in a breach, violation or acceleration of the Bonds, (iii) in or constitute a default under a material term of any way question indenture or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, to the issuance Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the BondsProgram Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 5 contracts
Sources: Master Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Trust Series MLCC 2003-G), Master Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc), Master Mortgage Loan Purchase Agreement (Merrill Lynch Mortgage Investors Inc)
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents and warrants to, and agrees with, the Company, as of the Closing, the following:
(a) The Purchaser has sufficient the knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able matters necessary to evaluate the merits and risks of its prospective investment in the Company, and merits of has carefully reviewed and understands the investment represented by risks of, and other considerations relating to, the purchase of the Bonds;Securities and the tax consequences of the investment. The Purchaser has adequate means of providing for its current and anticipated financial needs and contingencies, and is able to bear the economic risks of the investment for an indefinite period of time and has no need for liquidity of the investment in the Securities. The Purchaser can afford the loss of its entire investment.
(b) The Purchaser is acquiring the Securities for investment for its own account and not with the view to, or for resale in connection with, any distribution thereof. The Purchaser understands and acknowledges that no the offering documentand sale of the Securities have not been registered under the Securities Act or any state securities laws, prospectus by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that it does not have any contract, undertaking, agreement or official statement arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Securities, other than with respect to an Affiliate of the Purchaser. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, and the Purchaser shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
(c) The Purchaser represents that (i) it was not formed for the specific purpose of acquiring the Securities, (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (iii) the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable law or its charter or other organizational documents, (iv) it has full power and authority to execute and deliver each Transaction Document and to carry out the provisions thereof and to purchase and hold the Securities, (v) the execution and delivery of each Transaction Document by the Purchaser has been prepared duly authorized by or all necessary action, and (vi) each Transaction Document has been duly executed and delivered on behalf of the Issuer in connection with the sale Purchaser and is a legal, valid and binding obligation of the Bonds;
(c) As a sophisticated investor, Purchaser. The execution and delivery of each Transaction Document by the Purchaser has made its own credit inquiry and analysis does not violate or conflict with respect any order, judgment, injunction, agreement or controlling document to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to which the Purchaser all the information is a party or by which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;bound.
(d) The Purchaser understands that the Bonds have not been registered with any Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal or and state securities agency or commission;laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Securities to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into the Transaction Documents with the Purchaser.
(e) The Purchaser is acquiring understands that, other than as provided in the Bonds Registration Rights Agreement, the Company does not currently intend to register the Securities under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Securities. The Purchaser understands that there can be no assurance that any public market for its own account, and not the Common Stock will exist or continue to exist. The Company makes no representation or warranty with a present view to, or for present sale in connection with, any distribution respect to the continued quotation of the Bonds Common Stock on the OTC Markets QX tier or listing on any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;other market or exchange.
(f) The Purchaser has received, reviewed and understood the information about the Company provided to it by the Company and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any information provided by the Company, were intended to describe the aspects of the Company’s business and prospects which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by anyone other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Securities notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including financial statements of the Company for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that it is not relying on any such information in connection with its purchase of the Bonds Securities and that it waives any right of action with respect to the nondisclosure to it prior to its subsequent salepurchase of the Securities of any such information, if anyin each case, are exempt from SEC Rule 15c2-12;without waiving or otherwise limiting any right or claim the Purchaser may have hereunder. The Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(g) The Purchaser acknowledges and agrees that the Issuer has Company is not offered and has no obligation acting as a financial advisor or responsibility to provide fiduciary of the Purchaser (or in any disclosure or other information relating similar capacity) with respect to the Bonds Transaction Documents and the transactions contemplated thereby, and no investment advice has been given by the Company or the Issuer after issuance any of the Bonds, whether its representatives or agents in connection with any sale of the Bonds Transaction Documents and the transactions contemplated thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into each Transaction Document has been based solely on the independent evaluation by the Purchaser or otherwise;and the Purchaser’s representatives and the representations and warranties made by the Company in Section 2 hereof.
(h) The Purchaser represents that it has As of the Closing, all necessary power and authority to enter into this Purchase Agreement and to purchase actions on the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bondspart of Purchaser, and that its officers, directors and partners, if applicable, necessary for the terms authorization, execution and delivery of each Transaction Document and the performance of all obligations of the sale of the Bonds were negotiated at arm’s lengthPurchaser thereunder shall have been taken, and each Transaction Document, assuming due execution by the interest ratesparties thereto, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and legally binding obligation of the Purchaser Purchaser, enforceable in accordance with its terms, except as enforceability may be limited by subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
(i) Neither the enforcement of creditor’s rightsPurchaser nor, to its knowledge, any person or entity controlled by the application Purchaser: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of equitable principles the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (i) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders and (ii) consents to the exercise disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of judicial discretion in such information about the Purchaser as the Company reasonably deems necessary or appropriate cases to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the limitations on legal remedies against public entities USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the State Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser, the Company has the right or may be obligated to prohibit additional investments and segregate the assets constituting the investment in accordance with applicable regulations. The Purchaser further acknowledges that neither the Purchaser nor any of California; andthe Purchaser’s Affiliates or agents will have any claim against the Company for any form of damages as a result of any of the foregoing actions.
(j) As If the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), or if the Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) 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; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) 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.
(k) The Purchaser or its duly authorized representative realizes that because of the date hereofinherently speculative nature of businesses of the kind conducted and contemplated by the Company, there the Company’s future financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of the Company) included in the SEC Reports. The Purchaser has carefully considered such risk factors before deciding to invest in the Securities.
(l) The Purchaser is no actionnot subscribing for the Securities as a result of or subsequent to any advertisement, suitarticle, proceeding notice or investigation before other communication, published in any newspaper, magazine or similar media or broadcast over television, radio, or the internet, or presented at any seminar or meeting, or any solicitation of a subscription by any California court, public board or body pending or threatened a person not previously known to the actual Purchaser in connection with investments in securities generally.
(m) The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the Securities or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
(n) Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the securities of the Company during the period commencing at the time Purchaser was first contacted by the Company or any other individual or entity representing the Company regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers do not communicate or share information with, and have no direct knowledge of the investment decisions made by, the portfolio managers managing other portions of such Purchaser’s assets, wherein an unfavorable decisionthe representation set forth above shall only apply with respect to the portion of assets manage by, ruling or finding would: the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. The Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (i) affect including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or powers warranty, or preclude any actions, with respect to the identification of the Purchaseravailability of, (ii) enjoin or restrain securing of, available shares to borrow in order to effect Short Sales or similar transactions in the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability future. For purposes of this Purchase Agreement, or “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (iv) in any way question or affect but shall not be deemed to include the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance location and/or reservation of the Bondsborrowable shares of Common Stock).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Transphorm, Inc.), Securities Purchase Agreement (Transphorm, Inc.)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, severally and not jointly with any other Purchaser, represents and warrants to, and agrees with, the Company, as of the Closing, the following:
a. The Purchaser has sufficient the knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able matters necessary to evaluate the merits and risks of its prospective investment in the Company, and merits of has carefully reviewed and understands the investment represented by risks of, and other considerations relating to, the purchase of Shares and the Bonds;
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf tax consequences of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bondsinvestment. The Purchaser represents that it has received all information it considers material to making adequate means of providing for its investment decisions with respect to the Bonds current and has made such decisions upon its own credit inquiry anticipated financial needs and analyses. The Purchaser contingencies, and is able and willing to bear the economic risk risks of the purchase investment for an indefinite period of time and ownership has no need for liquidity of the Bonds;
(d) investment in the Shares. The Purchaser understands that can afford the Bonds have not been registered with any federal loss of his, her or state securities agency or commission;its entire investment.
(e) b. The Purchaser is acquiring the Bonds Shares for investment for his, her or its own account, account and not with a present the view to, or for present sale resale in connection with, any distribution of the Bonds or any part thereof; provided, however, . The Purchaser understands and acknowledges that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds Offering and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that he, she or it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Shares, other than with respect to an Affiliate of the Purchaser. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, for the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, and Purchaser shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. If the Purchaser is an individual, then the Purchaser resides in the jurisdiction identified in the address of the Purchaser set forth on the Purchaser’s Omnibus Signature Page to this Agreement; if the Purchaser is a partnership, corporation, limited liability company or otherwise;
(h) other entity, then the office or offices of the Purchaser in which its principal place of business is identified in the address or addresses of the Purchaser set forth on such Purchaser’s Omnibus Signature Page to this Agreement. The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
c. The Purchaser (i) if a natural person, represents that it he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has all necessary full power and authority to enter into execute and deliver this Purchase Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of applicable law or its charter or other organizational documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Bonds as contemplated herein Shares, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that he, she or it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Purchaser is executing this Agreement, and such individual, partnership, ▇▇▇▇, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the BondsCompany, and represents that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium such entity. The execution and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability delivery of this Purchase AgreementAgreement does not violate or conflict with any order, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreementjudgment, or any other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
d. The Purchaser understands that the Shares are being offered and sold to him, her or it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Shares to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
e. The Purchaser understands that, other than as expressly provided in the Registration Rights Agreement, the Company does not currently intend to register the Shares under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Shares. The Purchaser understands that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company makes no representation or warranty with respect to the continued quotation of the Common Stock on the OTC Markets QB tier or listing on any other market or exchange.
f. The Purchaser has received, reviewed and understood the information about the Company, including all Disclosure Materials provided to it by the Company and/or the Placement Agents (at the Company’s direction), and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any Disclosure Materials provided by the Company and/or the Placement Agents (at the Company’s direction), were intended to describe the aspects of the Company’s business and prospects and the Offering which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company and the Placement Agents. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that he, she or it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Shares notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including financial statements of the Company for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that he, she or it is not relying on any such information in connection with his, her or its purchase of the Shares and that he, she or it waives any right of action with respect to the nondisclosure to him, her or it prior to his, her or its purchase of the Shares of any such information, in each case, without waiving or otherwise limiting any right or claim the Purchaser may have hereunder. The Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to his, her or its acquisition of the Shares.
g. The Purchaser acknowledges that none of the Company or the Placement Agents is acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company, the Placement Agents or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives and the representations and warranties made by the Company in Section 3 hereof.
h. As of any Closing in which the Purchaser participates, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
i. The Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in the issuance Purchaser, nor any person on whose behalf the Purchaser is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the BondsUnited States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser (i) agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders and (ii) consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably determines that the Purchaser is a Prohibited Purchaser, the Company has the right or may be obligated to prohibit additional investments and segregate the assets constituting the investment in accordance with applicable regulations. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Company for any form of damages as a result of any of the foregoing actions.
j. If the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), or if the Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) 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; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) 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.
k. The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s future financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of the Company) included in the SEC Reports. The Purchaser has carefully considered such risk factors before deciding to invest in the Shares.
l. The Purchaser is not subscribing for Shares 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 or meeting, or any solicitation of a subscription by a person not previously known to the Purchaser in connection with investments in securities generally.
m. The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the Shares or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
n. Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with the Purchaser, executed any purchases or sales, including Short Sales (as defined below), of the securities of the Company during the period commencing at the time Purchaser was first contacted by the Company or any other individual or entity representing the Company (including one or more of the Placement Agents) regarding the transactions contemplated hereunder. Notwithstanding the foregoing, in the case the Purchaser is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
Appears in 2 contracts
Sources: Subscription Agreement (Transphorm, Inc.), Subscription Agreement (Transphorm, Inc.)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, severally and not jointly with any other Purchaser, represents and warrants to, and agrees with, the Company the following:
a. The Purchaser has sufficient the knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able matters necessary to evaluate the merits and risks of its prospective investment in the Company, and merits of has carefully reviewed and understands the investment represented by risks of, and other considerations relating to, the purchase of Shares and the Bonds;
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf tax consequences of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investorinvestment, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing ability to bear the economic risk risks of the purchase and ownership of the Bonds;
(d) investment. The Purchaser understands that can afford the Bonds have not been registered with any federal loss of his, her or state securities agency or commission;its entire investment.
(e) b. The Purchaser is acquiring the Bonds Shares for investment for his, her or its own account, account and not with a present the view to, or for present sale resale in connection with, any distribution of the Bonds or any part thereof; provided, however, . The Purchaser understands and acknowledges that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds Offering and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that he, she or it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Shares. The Purchaser understands and acknowledges that the Offering of the Shares will not be registered under the Securities Act nor under the state securities laws on the ground that the sale of the Shares to the Purchaser as provided for in this Agreement and the issuance of securities hereunder is exempt from the registration requirements of the Securities Act and any applicable state securities laws. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, for the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, and Purchaser or otherwise;
(h) shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth on the Purchaser’s Omnibus Signature Page affixed hereto. The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
c. The Purchaser (i) if a natural person, represents that it he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has all necessary full power and authority to enter into execute and deliver this Purchase Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Bonds as contemplated herein Shares, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that he, she or it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Purchaser is executing this Agreement, and such individual, partnership, ▇▇▇▇, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the BondsCompany, and represents that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium such entity. The execution and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability delivery of this Purchase AgreementAgreement will not violate or be in conflict with any order, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreementjudgment, or any other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
d. The Purchaser understands that the Shares are being offered and sold to him, her or it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Shares to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
e. The Purchase understands that, other than as expressly provided in the Registration Rights Agreement, the Company does not currently intend to register the Shares under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Shares. The Purchaser understands that no public market exists for the Company’s Common Stock and that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company’s Common Stock is not approved for quotation on OTC Markets or any other quotation system or listed on any exchange. The Company intends to cause the Common Stock to be quoted on OTC Markets QB tier as soon as practicable following the final Closing of the Offering; however, the Company makes no representation, warranty or covenant with respect to the initiation of or continued quotation of the Common Stock on the OTC Markets quotation or listing on any other market or exchange.
f. The Purchaser has received, reviewed and understood the information about the Company, including all Disclosure Materials, and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any Disclosure Materials provided by the Company, were intended to describe the aspects of the Company’s business and prospects and the Offering which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that he, she or it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Shares notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including (without limitation) financial statements of the Company and/or Amesite for the current or prior fiscal periods, and any subsequent period financial statements that will be filed with the SEC, that he, she or it is not relying on any such information in connection with his, her or its purchase of the Shares and that he, she or it waives any right of action with respect to the nondisclosure to him, her or it prior to his, her or its purchase of the Shares of any such information. Each Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to his, her or its acquisition of the Shares.
g. The Purchaser acknowledges that none of the Company or the Placement Agents is acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company, the Placement Agents or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives.
h. As of the applicable Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
i. Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in the issuance Purchaser, nor any person on whose behalf the Purchaser is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the BondsUnited States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. The Purchaser consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably believes that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Shares. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Company or Amesite for any form of damages as a result of any of the foregoing actions.
j. If the Purchaser is Affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if the Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) 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; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) 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.
k. The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors and other information (including the financial statements of Amesite) included in the Super 8-K. The Purchaser has carefully considered such risk factors before deciding to invest in the Shares.
l. The Purchaser has adequate means of providing for its current and anticipated financial needs and contingencies, is able to bear the economic risk for an indefinite period of time and has no need for liquidity of the investment in the Shares and could afford complete loss of such investment.
m. The Purchaser is not subscribing for Shares 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 or meeting, or any solicitation of a subscription by a person not previously known to the Purchaser in connection with investments in securities generally.
n. The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the Shares or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
o. Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor has any individual or entity acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other individual or entity representing the Company setting forth the material terms of the transactions contemplated hereunder and ending imme
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (Amesite Inc.)
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company, and covenants and agrees with the Company, as follows:
a. The Purchaser understands and acknowledges that none of the Shares offered by the Company pursuant to the Offering are registered under the Securities Act of 1933, as amended (athe "Securities Act"), or any state securities laws. The Purchaser understands that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act, by virtue of Section 4(2) and/or Section 4(6) thereof and the provisions of Regulation D promulgated thereunder, based, in substantial part, upon the representations, warranties and agreements of the Purchaser contained in this Subscription Agreement.
b. The Purchaser and the Purchaser's attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the "Advisors") have received, or had made available to it, copies of the following documents of the Company (the "Disclosure Documents"): the Annual Report on Form 10-KSB of the Company for its fiscal year ended September 30, 1998, the Quarterly Report on Form 10-QSB of the Company for the fiscal quarter ended December 31, 1998 and all other documents reasonably requested by the Purchaser. The Purchaser has sufficient knowledge carefully reviewed the Disclosure Documents and experience in financial understands the information contained therein.
c. Neither the Securities and business mattersExchange Commission ("Commission") nor any state securities commission has approved the Shares or the Offering, including purchase and ownership of obligations of a nature similar to or passed upon or endorsed the Bonds to be able to evaluate the risks and merits of the investment represented Offering or confirmed the accuracy or determined the adequacy of this Subscription Agreement. This Subscription Agreement has not been reviewed by the purchase of the Bonds;any Federal, state or other regulatory authority.
(b) d. The Purchaser acknowledges that no offering documentall documents, prospectus or official statement has records, and books pertaining to an investment in the Shares have been prepared made available for inspection by or on behalf of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investor, the such Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds Advisors, if any.
e. The Purchaser and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the PurchaserAdvisors, as if any, have had a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive satisfactory answers from knowledgeable Issuer officials and other individuals a person or persons acting on behalf of the Company concerning the Issuer Offering, the Shares and the Bonds. Company and all such questions have been answered to the full satisfaction of the Purchasers and the Advisors, if any.
f. In evaluating the suitability of an investment in the Company, the Purchaser has not relied upon any representation or other information (oral or written) other than as stated in this Subscription Agreement and/or as contained in the Disclosure Documents.
g. The Purchaser represents that it is unaware of, is no way relying on, and did not become aware of the Offering of the Shares through or as a result of any form of general solicitation or general advertising, including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, in connection with the Offering and is not subscribing for the Shares and did not become aware of the Offering through or as a result of any seminar or meeting to which the Purchaser was invited by, or any solicitation of a subscription by, a person not previously known to the Purchaser in connection with investments in securities generally.
h. The Purchaser has received all taken no action which would give rise to any claim by any person for brokerage commissions, finders' fees or the like relating to this Subscription Agreement or the transactions contemplated hereby.
i. The Purchaser, together with the Advisors, have such knowledge and experience in financial, tax, and business matters, and, in particular, investments in securities, so as to enable them to utilize the information it considers material made available to making them in connection with the Offering to evaluate the merits and risks of an investment in the Shares and to make an informed investment decision with respect thereto.
j. The Purchaser is not relying on the Company or any of its investment decisions officers, directors, employees or agents with respect to the Bonds legal, tax, economic and related considerations of an investment in the Shares, and the Purchaser has made such decisions upon its relied on the advice of, or has consulted with, only his own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;Advisors (if any).
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(e) k. The Purchaser is acquiring the Bonds Shares solely for its such Purchaser's own account, account for investment and not with a present view toto resale or distribution thereof, in whole or for present sale in connection withpart. The Purchaser has no agreement or arrangement, formal or informal, with any distribution of the Bonds person to sell or transfer all or any part thereof; providedof the Shares, howeverand the Purchaser has no plans to enter into any such agreement or arrangement.
l. The Purchaser must bear the substantial economic risks of an investment in the Shares indefinitely because the Shares may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from such registration is available. The Purchaser acknowledges that legends shall be placed on the shares of Common Stock, issued pursuant to the conversion of the Preferred Stock, to the effect that they have not been registered under the Securities Act or applicable state securities laws and appropriate notations thereof will be made in the Company's stock books. Stop transfer instructions will be placed with the transfer agent of the Company.
m. The Purchaser has adequate means of providing for such Purchaser's current financial needs and foreseeable contingencies and has no need for liquidity of the investment in the Shares for an indefinite period of time.
n. The Purchaser is aware that an investment in the Shares involves a number of very significant risks and investment considerations.
o. The Purchaser meets the requirements of at least one of the suitability standards for an "accredited investor" under Regulation D promulgated under the Securities Act and as set forth on the Accredited Investor Certification contained herein.
p. The Purchaser: (i) if a natural person represents that the Purchaser retains has reached the right age of 21 and has full power and authority to sell execute and deliver this Subscription Agreement and all other related agreements or certificates and to carry out the Bonds in the provisions hereof and thereof and has adequate means for providing for his or her current financial needs and anticipated future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds needs and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges possible personal contingencies and agrees that the Issuer has not offered emergencies and has no obligation need for liquidity in the investment in the Shares; (ii) if a corporation, partnership, limited liability company or responsibility to provide any disclosure partnership, association, joint stock company, trust, unincorporated organization or other information relating to entity represents that such entity was not formed for the Bonds or specific purpose of acquiring the Issuer after issuance Shares, such entity is duly organized, validly existing and in good standing under the laws of the Bondsstate of its organization, whether in connection with any sale the consummation of the Bonds transactions contemplated hereby is authorized by, and will not result in a violation or breach of any law, regulation, agreement to which it is a party or is otherwise bound or of its charter or other organizational documents; such entity has full power and authority to execute and deliver this Subscription Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Shares; the execution and delivery of this Subscription Agreement has been duly authorized by the Purchaser all necessary action; this Subscription Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; and (iii) if executing this Subscription Agreement in a representative or otherwise;
(h) The Purchaser fiduciary capacity, represents that it has all necessary full power and authority to enter into execute and deliver this Purchase Subscription Agreement in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity for whom the Purchaser is executing this Subscription Agreement, and such individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity has full right and power to perform pursuant to this Subscription Agreement and to purchase the Bonds as contemplated herein and make an investment in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, Company; and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase this Subscription Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium such entity. The execution and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability delivery of this Purchase AgreementSubscription Agreement will not violate or be in conflict with any order, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreementjudgment, or any other injunction, agreement or instrument document to which the Purchaser is a party relating or by which it is bound.
q. Any information which the Purchaser has heretofore furnished or furnishes herewith to the Company is complete and accurate and may be relied upon by the Company in determining the availability of an exemption from registration under Federal and state securities laws in connection with the Offering. The Purchaser will notify and supply corrective information to the Company immediately (and without a specific request therefor) upon the occurrence of any change therein occurring prior to the Company's issuance of the BondsShares.
r. The Purchaser has significant prior investment experience, including investment in non-registered securities. The Purchaser has a sufficient net worth to sustain a loss of its entire investment in the Company in the event such a loss should occur. The Purchaser's overall commitment to investments which are not readily marketable is not excessive in view of his/its net worth and financial circumstances and the purchase of the Shares will not cause such commitment to become excessive. The investment is a suitable one for the Purchaser.
s. No oral or written representations have been made, or oral or written information furnished, to the Purchaser in connection with the Offering which are in any way inconsistent with the information contained herein.
t. The Purchaser acknowledges that, even if the Maximum Amount is raised from the sale of the Shares, the net proceeds thereof will provide the Company with the funds to meet only its most immediate needs and that additional funds will be required by the Company (with the consequent dilution of value and/or ownership) through additional equity and/or debt financing(s), and no assurance can be given as to the availability or adequacy of terms of any such financing(s). In the event that the Company does not obtain the requisite funds, it may be necessary for the Company to reduce, suspend or cease certain of its operations. The Purchaser acknowledges that the Company intends to use the net proceeds of the offering for its working capital requirements.
u. Blue Sky Information: FOR RESIDENTS OF ALL STATES: THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. FOR CONNECTICUT RESIDENTS: THE SECURITIES HAVE NOT BEEN REGISTERED UNDER SECTION 36-485 OF THE CONNECTICUT UNIFORM SECURITIES ACT AND THEREFORE CANNOT BE RESOLD UNLESS THEY ARE REGISTERED UNDER THE CONNECTICUT UNIFORM SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. FOR FLORIDA RESIDENTS: IF SALES OF THESE SECURITIES ARE CONSUMMATED WITH FIVE OR MORE OFFEREES IN THE STATE OF FLORIDA, ANY SUCH OFFEREE MAY, AT SUCH OFFEREE'S OPTION, VOID ANY PURCHASE HEREUNDER WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE PURCHASER TO THE COMPANY, AN AGENT OF THE COMPANY OR AN ESCROW AGENT, OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO THE PURCHASER, WHICHEVER OCCURS LATER. FOR VERMONT RESIDENTS: EACH PERSON WHO ACCEPTS AN OFFER TO PURCHASE SECURITIES DIRECTLY FROM THE ISSUER OR AN AFFILIATE OF THE ISSUER SHALL HAVE THE RIGHT TO WITHDRAW HIS ACCEPTANCE WITHOUT INCURRING ANY LIABILITY TO THE SELLER, UNDERWRITER (IF ANY) OR ANY OTHER PERSON WITHIN THREE BUSINESS DAYS AFTER HE MAKES THE INITIAL PAYMENT FOR THE SECURITIES BEING OFFERED.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents, warrants and covenants to the Company, as of the date of this Agreement, as follows:
(a) The Purchaser has sufficient knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds;
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(e) The Purchaser is acquiring the Bonds Notes for investment for its own account, not as a nominee or agent, and not with a present view to, or for present sale resale, in connection with, any distribution thereof. The Purchaser intends to hold the Notes for the account of the Bonds Purchaser, and currently does not intend, and does not have any agreement or understanding, at this time to dispose of all or any part thereof; providedof the Notes. The Purchaser, however, that the Purchaser retains reserves the right to sell all or part of the Bonds in the future Notes in accordance with the terms of the Trust Indenture.
(b) The Purchaser is a “qualified institutional buyer” as such term is defined in Rule 144A under the Securities Act.
(c) The Purchaser (i) has experience in independently evaluating and investing in businesses in the Company’s industry which are at similar stage of development as the Company, (ii) has such knowledge and experience in business matters so as to be fully capable of independently evaluating the merits and risks of the investment in the Notes, has the capacity to protect its own interests and can bear the economic risk of an investment in the Notes, and (iii) has had an opportunity to discuss the transactions contemplated by the Transaction Documents with its advisors, including legal counsel and tax advisors, as it deemed necessary and appropriate to adequately evaluate an investment in the Notes.
(d) The Purchaser acknowledges that it is familiar with the condition, financial and otherwise, of the Company and the Notes and the security provided under the Security Agreement in connection with the Notes and, to the extent deemed appropriate in making its investment decision, has discussed with the Company and its advisors, the Notes, the security therefore under the Security Agreement;, the Company’s financial condition and prospects and the Company’s current and proposed activities. The Company has allowed the Purchaser access to such financial and other information and personnel of the Company as the Purchaser has deemed necessary in connection with the purchase of the Notes. The Company has provided the Purchaser, during the course of the negotiations of the transactions contemplated by this Agreement and prior to the sale of the Notes, the opportunity to ask questions of, and receive answers from, the Company and its advisors concerning the terms and conditions of the sale of the Notes and to obtain any additional information necessary and appropriate in connection therewith. The Purchaser has made such inquiry as it has believed to be desirable for its purposes and has obtained such information it regards necessary, appropriate and adequate from the Company and its representatives for its decision to purchase the Notes.
(e) The Purchaser acknowledges that investing in securities of the Company, and therefore, the purchase of the Notes, involves substantial risk, including, but not limited, to those risks listed under “Risk Factors” in the Exchange Act Reports.
(f) The Purchaser represents that Neither the Purchaser, nor any of its Affiliates, officers, employees, agents, shareholders, members or directors has, either directly or indirectly including through a broker or finder, (i) been presented with or solicited by any publicly issued or circulated form of advertisement or general solicitation in connection with the offer, sale and purchase of the Bonds Notes or (ii) engaged in any general solicitation or published any advertisement in connection with the offer and sale of the Notes. The Purchaser or its subsequent saleAffiliates, if anyofficers, are exempt from SEC Rule 15c2employees, agents, shareholders, members or directors have a pre-12;existing business relationship with the Company and were contacted directly by the Company or its agents regarding the opportunity to participate in the offer, sale and purchase of the Notes.
(g) The Purchaser acknowledges that the Notes have not been registered under the Securities Act, that the Notes are being issued pursuant to an exemption from the registration requirements of the Securities Act, that the Notes are restricted securities under the Securities Act insofar as they are being acquired from the Company in a transaction not involving a public offering and that under the Securities Act and applicable regulations promulgated thereunder the Notes may be resold without registration under the Securities Act only in certain limited circumstances. The Purchaser is familiar with Rule 144A and Rule 144 promulgated by the Commission, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act and agrees that to be bound by such limitations and not resell, pledge or otherwise transfer the Issuer has not offered Notes except in compliance with such limitations and has no obligation or responsibility to provide any disclosure or other information relating to in accordance with the Bonds or the Issuer after issuance terms of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;Indenture.
(h) The Purchaser represents acknowledges that it has all necessary power neither the Company nor its Affiliates, agents and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legaladvisors have made any representation, statutorywarranty or agreement, investment policy and any other conditions precedent to entering into this Purchase Agreement express or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rightsimplied, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect Purchaser regarding the transactions contemplated by this Purchase Agreement, except for the representations, warranties and agreements of the Company expressly set forth in this Agreement and the other Transaction Documents, and the Purchaser expressly acknowledges that it is not relying on any other information, written or oral, or documents previously furnished to or discovered by the Purchaser or any other agreement representations, warranties or instrument agreements, other than the representations, warranties and agreements of the Company expressly set forth in this Agreement and the other Transaction Documents in making its decision to which purchase the Notes and enter into the other transactions contemplated by this Agreement.
(i) The Purchaser acknowledges and agrees that (i) the Company is entitled to rely upon the Purchaser’s representations, warranties and agreements contained in this Agreement, and (ii) the Notes are being sold by the Company to the Purchaser is a party relating to in reliance upon the issuance truth and accuracy of the BondsPurchaser’s representations, warranties and agreements contained in this Agreement.
Appears in 1 contract
Sources: Note Purchase Agreement (Vertex Pharmaceuticals Inc / Ma)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, severally and not jointly with any other Purchaser, represents and warrants to, and agrees with, the Company, as of the Initial Closing or any Subsequent Closing, as applicable, the following:
a. The Purchaser has sufficient the knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able matters necessary to evaluate the merits and risks of its prospective investment in the Company, and merits of has carefully reviewed and understands the investment represented by risks of, and other considerations relating to, the purchase of Shares and the Bonds;
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf tax consequences of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investorinvestment, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing ability to bear the economic risk risks of the purchase and ownership of the Bonds;
(d) investment. The Purchaser understands that can afford the Bonds have not been registered with any federal loss of his, her or state securities agency or commission;its entire investment.
(e) b. The Purchaser is acquiring the Bonds Shares for investment for his, her or its own account, account and not with a present the view to, or for present sale resale in connection with, any distribution of the Bonds or any part thereof; provided, however, . The Purchaser understands and acknowledges that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds Offering and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds Shares have not been registered under the Securities Act or any state securities laws, by reason of a specific exemption from the registration provisions of the Securities Act and applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. The Purchaser further represents that he, she or it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Shares. The Purchaser understands and acknowledges that the Offering of the Shares will not be registered under the Securities Act nor under the state securities laws on the ground that the sale of the Shares to the Purchaser as provided for in this Agreement and the issuance of securities hereunder is exempt from the registration requirements of the Securities Act and any applicable state securities laws. The Purchaser is an “accredited investor” as defined in Rule 501 of Regulation D as promulgated by the SEC under the Securities Act, for the reason(s) specified on the Accredited Investor Certification attached hereto as completed by Purchaser, and Purchaser or otherwise;
(h) shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The Purchaser resides in the jurisdiction set forth on the Purchaser’s Omnibus Signature Page affixed hereto. The Purchaser has not taken any of the actions set forth in, and is not subject to, the disqualification provisions of Rule 506(d)(1) of the Securities Act.
c. The Purchaser (i) if a natural person, represents that it he or she is the greater of (A) 21 years of age or (B) the age of legal majority in his or her jurisdiction of residence, and has all necessary full power and authority to enter into execute and deliver this Purchase Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof; (ii) if a corporation, partnership, limited liability company, association, joint stock company, trust, unincorporated organization or other entity, represents that such entity was not formed for the specific purpose of acquiring the Shares, such entity is duly organized, validly existing and in good standing under the laws of the state or jurisdiction of its organization, the consummation of the transactions contemplated hereby is authorized by, and will not result in a violation of state law or its charter or other organizational documents, such entity has full power and authority to execute and deliver this Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Bonds as contemplated herein Shares, the execution and delivery of this Agreement has been duly authorized by all necessary action, this Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; or (iii) if executing this Agreement in a representative or fiduciary capacity, represents that he, she or it has full power and authority to execute and deliver this Agreement in such capacity and on behalf of the subscribing individual, w▇▇▇, partnership, trust, estate, corporation, or limited liability company or partnership, or other entity for whom the Purchaser is executing this Agreement, and such individual, partnership, w▇▇▇, trust, estate, corporation, or limited liability company or partnership, or other entity has full right and power to perform pursuant to this Agreement and make an investment in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the BondsCompany, and represents that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase this Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium such entity. The execution and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability delivery of this Purchase AgreementAgreement will not violate or be in conflict with any order, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreementjudgment, or any other injunction, agreement or instrument controlling document to which the Purchaser is a party or by which it is bound.
d. The Purchaser understands that the Shares are being offered and sold to him, her or it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to acquire such securities. The Purchaser further acknowledges and understands that the Company is relying on the representations and warranties made by the Purchaser hereunder and that such representations and warranties are a material inducement to the Company to sell the Shares to the Purchaser. The Purchaser further acknowledges that without such representations and warranties of the Purchaser made hereunder, the Company would not enter into this Agreement with the Purchaser.
e. The Purchaser understands that, other than as expressly provided in the Registration Rights Agreement, the Company does not currently intend to register the Shares under the Securities Act at any time in the future; and the undersigned will not immediately be entitled to the benefits of Rule 144 with respect to the Shares. In addition, it is possible that in the event the Company files a registration statement for an underwritten public offering, that such underwriter may require the Purchaser to “lock-up” and not sell the Shares acquired hereunder for a period of time not to exceed six (6) months. Each Purchaser hereby consents to any such lock-up should same be required by an underwriter of the Company’s securities as set forth in the Registration Rights Agreements. The Purchaser understands that no public market exists for the Company’s Common Stock and that there can be no assurance that any public market for the Common Stock will exist or continue to exist. The Company’s Common Stock is not approved for quotation on OTC Markets or any other quotation system or listed on any exchange. The Company makes no representation, warranty or covenant with respect to the initiation of or continued quotation of the Common Stock on the OTC Markets quotation or listing on any other market or exchange.
f. The Purchaser has received, reviewed and understood the information about the Company, including all Disclosure Materials, and has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management. The Purchaser understands that such discussions, as well as any Disclosure Materials provided by the Company, were intended to describe the aspects of the Company’s business and prospects and the Offering which the Company believes to be material, but were not necessarily a thorough or exhaustive description, and except as expressly set forth in this Agreement, the Company makes no representation or warranty with respect to the completeness of such information and makes no representation or warranty of any kind with respect to any information provided by any entity other than the Company. Some of such information may include projections as to the future performance of the Company, which projections may not be realized, may be based on assumptions which may not be correct and may be subject to numerous factors beyond the Company’s control. The Purchaser acknowledges that he, she or it is not relying upon any person or entity, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Additionally, the Purchaser understands and represents that he, she or it is purchasing the Shares notwithstanding the fact that the Company may disclose in the future certain material information the Purchaser has not received, including (without limitation) financial statements of the Company and/or Odyssey for the current or prior fiscal periods, and any subsequent period financial statements that may be filed with the SEC, that he, she or it is not relying on any such information in connection with his, her or its purchase of the Shares and that he, she or it waives any right of action with respect to the nondisclosure to him, her or it prior to his, her or its purchase of the Shares of any such information. Each Purchaser has sought such accounting, legal and tax advice as the Purchaser has considered necessary to make an informed investment decision with respect to his, her or its acquisition of the Shares.
g. The Purchaser acknowledges that none of the Company, Odyssey, the Placement Agents or their respective counsel are acting as a financial advisor or fiduciary of the Purchaser (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and no investment advice has been given by the Company, Odyssey, the Placement Agents or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby. The Purchaser further represents to the Company that the Purchaser’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Purchaser and the Purchaser’s representatives.
h. As of the applicable Closing, all actions on the part of Purchaser, and its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the Registration Rights Agreement and the performance of all obligations of the Purchaser hereunder and thereunder shall have been taken, and this Agreement and the Registration Rights Agreement, assuming due execution by the parties hereto and thereto, constitute valid and legally binding obligations of the Purchaser, enforceable in accordance with their respective terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights.
i. Purchaser represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in the issuance Purchaser, nor any person on whose behalf the Purchaser is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the BondsUnited States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Purchaser”). The Purchaser agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. The Purchaser consents to the disclosure to U.S. regulators and law enforcement authorities by the Company and its Affiliates and agents of such information about the Purchaser as the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. If the Purchaser is a financial institution that is subject to the USA Patriot Act, the Purchaser represents that it has met all of its obligations under the USA Patriot Act. The Purchaser acknowledges that if, following its investment in the Company, the Company reasonably believes that the Purchaser is a Prohibited Purchaser or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require the Purchaser to transfer the Shares. The Purchaser further acknowledges that neither the Purchaser nor any of the Purchaser’s Affiliates or agents will have any claim against the Company or Odyssey for any form of damages as a result of any of the foregoing actions.
j. If the Purchaser is an Affiliate of a non-U.S. banking institution (a “Foreign Bank”), or if the Purchaser receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, the Purchaser represents and warrants to the Company that: (1) 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; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by the banking authority that licensed the Foreign Bank to conduct banking activities; and (4) 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.
k. The Purchaser or its duly authorized representative realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. The Purchaser has carefully read the risk factors attached hereto as Exhibit B (the “Risk Factors”) and other information (including the financial statements of Odyssey) included in the Disclosure Materials. The Purchaser has carefully considered such Risk Factors before deciding to invest in the Shares.
l. The Purchaser has adequate means of providing for its current and anticipated financial needs and contingencies, is able to bear the economic risk for an indefinite period of time and has no need for liquidity of the investment in the Shares and could afford complete loss of such investment.
m. The Purchaser is not subscribing for Shares 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 or meeting, or any solicitation of a subscription by a person not previously known to the Purchaser in connection with investments in securities generally.
n. The Purchaser acknowledges that no U.S. federal or state agency or any other government or governmental agency has passed upon the Shares or made any finding or determination as to the fairness, suitability or wisdom of any investments therein.
o. Other than consummating the transactions contemplated hereunder, the Purchaser has not directly or indirectly, nor
Appears in 1 contract
Sources: Subscription Agreement (Odyssey Semiconductor Technologies, Inc.)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser, without conceding that any Mortgage Loans are securities, hereby makes the following representations, warranties and agreements, which shall have been deemed to have been made as of the respective Closing Date:
(i) The Purchaser has sufficient is acquiring the Mortgage Loans for its own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial, sophisticated institutional investor having such knowledge and experience in financial and business mattersmatters that it is capable of evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf has offered, including purchase and ownership transferred, pledged, sold or otherwise disposed of obligations any Mortgage Loan, any interest in any Mortgage Loan or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loan, any interest in any Mortgage Loan or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loan, any interest in any Mortgage Loan or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a nature similar distribution of the Mortgage Loans under the Securities Act of 1933, as amended (the "Securities Act"), or that would render the disposition of any Mortgage Loan a violation of Section 5 of the Securities Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Bonds to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds;Mortgage Loans.
(b) The Purchaser acknowledges represents and warrants to the Seller that no offering document, prospectus or official statement has been prepared by or on behalf as of the Issuer in connection with the sale date hereof, as of the Bonds;date of each respective Purchase Price and Terms Letter and as of each respective Closing Date (or as of such other date or dates as may be expressly set forth below):
(c) As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(ei) The Purchaser is acquiring duly organized, validly existing and in good standing as a corporation under the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution laws of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) Maryland. The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;
(h) The Purchaser represents that it has all necessary full power and authority (corporate and otherwise) to enter into this Purchase and perform its obligations under the Program Documents.
(ii) This Agreement, the Servicing Agreements and the Custodial Letter Agreement each has been duly authorized, executed and to purchase delivered by the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the BondsPurchaser, and that each constitutes the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation agreement of the Purchaser, enforceable against the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and.
(jiii) As of the date hereofof the respective Purchase Price and Terms Letter and as of the respective Closing Date, there is no actionthe Purchase Price and Terms Letter has been duly authorized, suitexecuted and delivered by the Purchaser, proceeding or investigation before or by any California courtand the Purchase Price and Terms Letter constitutes the legal, public board or body pending or threatened to the actual knowledge valid and binding agreement of the Purchaser, wherein an unfavorable decisionenforceable against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the Seller, ruling nor the purchase of the Mortgage Loans by the Purchaser, nor the execution or finding would: (i) affect delivery of the existence Program Documents, nor the consummation of any of the Transactions herein or powers therein contemplated, nor the fulfillment of the terms hereof or thereof, will result in the breach of any term or provision of the charter or by-laws of the Purchaser, (ii) enjoin or restrain the purchase conflict with, result in a breach, violation or acceleration of the Bonds, (iii) in or constitute a default under a material term of any way question indenture or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating or by which the Purchaser is bound, or any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator.
(v) There are no actions, proceedings or investigations pending or, to the issuance Purchaser's knowledge, threatened against the Purchaser that, either in any one instance or in the aggregate, could draw into question the validity of any of the BondsProgram Documents or prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any court, regulatory body, administrative agency, governmental body or arbitrator is required for the execution or delivery by the Purchaser of any of the Program Documents, the performance by the Purchaser of its obligations hereunder or the consummation by the Purchaser of any of the Transactions.
(vii) The Purchaser has not dealt with any broker, investment banker, agent or other Person, except the Seller, who may be entitled to any commission or compensation in connection with the purchase of the Mortgage Loans.
Appears in 1 contract
Sources: Master Mortgage Loan Purchase Agreement (Merrill Lynch Mort Inv Inc Mo Pass THR Ce Se MLCC 2003f)
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser hereby represents and warrants to, and agrees with, the Trust and the Company that the Purchaser it is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act. The Purchaser acknowledges that it has sufficient such knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able matters as are necessary in order to evaluate the merits and risks of an investment in the Trust Preferred Securities. The Purchaser is able to bear the economic risk of its investment in the Trust Preferred Securities. The Purchaser acknowledges that it has had access to such financial and merits other information and has been afforded the opportunity to ask such questions of the investment represented Company and with respect to the Trust and receive answers thereto, as it deems necessary in connection with its decision to purchase the Trust Preferred Securities. The Purchaser acknowledges that it is not purchasing the Trust Preferred Securities as a result of any advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising). The Purchaser understands that the purchase of Trust Preferred Securities are being offered and sold to it pursuant to an exemption from the Bonds;registration requirements under the Securities Act.
(b) The Purchaser acknowledges understands and agrees that no offering documentit may not resell or otherwise transfer any Trust Preferred Securities prior to the date that is the earlier of (1) two years after the date hereof or (2) three months after the Company has repaid the Term Loan Agreement (as defined in the Declaration of Trust). In addition, prospectus the Purchaser understands and agrees that the Trust Preferred Securities may only be offered and sold pursuant to an effective registration statement or official statement has been prepared by or on behalf of pursuant to an exemption from the Issuer in connection with the sale of the Bonds;Securities Act.
(c) As The Purchaser understands and agrees that the Trust Preferred Securities will be sold in denominations of $5,000,000 and will not be transferable in amounts of less than $50,000,000 aggregate liquidation amount, provided that in the event of a sophisticated investorpartial redemption of Trust Preferred Securities, a holder of such Trust Preferred Securities may subsequently transfer the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon full amount of Trust Preferred Securities then held by such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bondsholder. The Purchaser represents further understands and agrees that it has received all information it considers material to making its investment decisions with respect any transfer of Trust Preferred Securities in an amount having an aggregate liquidation amount of less than $50,000,000 or any amount resulting in a Holder’s holding Trust Preferred Securities in an amount having an aggregate liquidation amount of less than $50,000,000, except in each case pursuant to the Bonds proviso above, shall be deemed to be void and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;no legal effect.
(d) The Purchaser understands and agrees that the Bonds have not been registered with any federal or state securities agency or commission;Trust Preferred Securities will be issued in certificated form.
(e) The Purchaser is acquiring the Bonds for its own accountThis Agreement has been duly and validly authorized, executed and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds delivered by the Purchaser or otherwise;
(h) The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance of the Bonds.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company and the Guarantors as follows (it being understood that the Purchaser does not make any representation, warranty, covenant or agreement to any other purchaser of Second Lien Notes or to the Company or the Guarantors on behalf of any other purchaser of the Second Lien Notes):
(a) The Purchaser has sufficient knowledge (i) is knowledgeable, sophisticated and experience experienced in financial making, and business mattersis qualified to make, including purchase and ownership of obligations of a nature similar decisions with respect to the Bonds to be able to evaluate the risks and merits of the investments in securities representing an investment represented by decision like that involved in the purchase of the Bonds;Second Lien Notes, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Second Lien Notes; (ii) is acquiring the Second Lien Notes in the ordinary course of its business and for its own account for investment purposes only and with no present intention of distributing any of such Second Lien Notes or any arrangement or understanding with any other persons regarding the distribution of such Second Lien Notes; and (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Second Lien Notes except in compliance with the Securities Act and any applicable state securities laws.
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of is a “qualified institutional buyer” (as defined in Rule 144A under the Issuer in connection with the sale of the Bonds;Securities Act.
(c) As a sophisticated investorThe Purchaser understands and acknowledges that (i) the Second Lien Notes are being offered in transactions not involving any public offering within the meaning of the Securities Act; (ii) the initial offering and issuance of the Second Lien Notes has not been registered under the Securities Act or any other securities laws, (iii) if in the Purchaser has made its own credit inquiry future it decides to resell, pledge or otherwise transfer the Second Lien Notes that it purchases hereunder, those Second Lien Notes, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of the states and analysis with respect to other jurisdictions of the Issuer United States, and (iv) it will, and each subsequent holder of any of the Bonds and has made an independent credit decision based upon Second Lien Notes that it purchases in this offering is required to, notify any subsequent purchaser of such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the PurchaserSecond Lien Notes from it or subsequent holders, as a reasonable investorapplicable, has requested of the Issuer as a result of the Purchaser having attached significance thereto resale restrictions referred to in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;clause (iii) above.
(d) The Purchaser understands and acknowledges that the Bonds have not been registered with any federal or state securities agency or commission;Company and the Guarantors are relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understanding of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the Second Lien Notes.
(e) The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, understands that the Purchaser retains the right to sell the Bonds Second Lien Notes will bear a restrictive legend substantially in the future in accordance with the terms of the Trust Agreement;following form: “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
(f) (i) The Purchaser represents that its purchase has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) the execution, delivery and performance of the Bonds Agreement by the Purchaser and its subsequent salethe consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Purchaser or any statute or any authorization, if anyjudgment, are exempt from SEC Rule 15c2-12;decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to Purchaser.
(g) The Purchaser acknowledges and agrees understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds Second Lien Notes or the Issuer after issuance fairness or suitability of the Bonds, whether investment in connection with any sale the Second Lien Notes nor have such authorities passed upon or endorsed the merits of the Bonds by offering of the Purchaser or otherwise;Second Lien Notes.
(h) The Purchaser’s principal executive offices are in the jurisdiction set forth under the Purchaser’s signature on the signature block hereto.
(i) The Purchaser acknowledges that the Company, the Guarantors and its counsel will rely upon the accuracy of the foregoing acknowledgments, representations and agreements. The Purchaser agrees that if any of the acknowledgments, representations or agreements that Purchaser is deemed to have made by its purchase of the Second Lien Notes is no longer accurate, it shall promptly notify the Company and the Guarantors. If the Purchaser is purchasing the Second Lien Notes as a fiduciary or agent for one or more investor accounts, the Purchaser represents that it has all necessary sole investment discretion with respect to each of those accounts and full power to make the above acknowledgments, representations and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms agreements on behalf of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance of the Bondseach account.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company and the Guarantors as follows (it being understood that the Purchaser does not make any representation, warranty, covenant or agreement to any other purchaser of First Lien Notes or to the Company or the Guarantors on behalf of any other purchaser of the First Lien Notes):
(a) The Purchaser has sufficient knowledge (i) is knowledgeable, sophisticated and experience experienced in financial making, and business mattersis qualified to make, including purchase and ownership of obligations of a nature similar decisions with respect to the Bonds to be able to evaluate the risks and merits of the investments in securities representing an investment represented by decision like that involved in the purchase of the Bonds;First Lien Notes, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the First Lien Notes; (ii) is acquiring the First Lien Notes in the ordinary course of its business and for its own account for investment purposes only and with no present intention of distributing any of such First Lien Notes or any arrangement or understanding with any other persons regarding the distribution of such First Lien Notes; and (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the First Lien Notes except in compliance with the Securities Act and any applicable state securities laws.
(b) The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of is a “qualified institutional buyer” (as defined in Rule 144A under the Issuer in connection with the sale of the Bonds;Securities Act.
(c) As a sophisticated investorThe Purchaser understands and acknowledges that (i) the First Lien Notes are being offered in transactions not involving any public offering within the meaning of the Securities Act; (ii) the initial offering and issuance of the First Lien Notes has not been registered under the Securities Act or any other securities laws, (iii) if in the Purchaser has made its own credit inquiry future it decides to resell, pledge or otherwise transfer the First Lien Notes that it purchases hereunder, those First Lien Notes, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of the states and analysis with respect to other jurisdictions of the Issuer United States, and (iv) it will, and each subsequent holder of any of the Bonds and has made an independent credit decision based upon First Lien Notes that it purchases in this offering is required to, notify any subsequent purchaser of such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the PurchaserFirst Lien Notes from it or subsequent holders, as a reasonable investorapplicable, has requested of the Issuer as a result of the Purchaser having attached significance thereto resale restrictions referred to in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;clause (iii) above.
(d) The Purchaser understands and acknowledges that the Bonds have not been registered with any federal or state securities agency or commission;Company and the Guarantors are relying upon the truth and accuracy of, and the Purchaser’s compliance with, the representations, warranties, agreements, acknowledgments and understanding of the Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of the Purchaser to acquire the First Lien Notes.
(e) The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, understands that the Purchaser retains the right to sell the Bonds First Lien Notes will bear a restrictive legend substantially in the future in accordance with the terms of the Trust Agreement;following form: “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) (a) TO A PERSON WHO IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), (ii) TO THE ISSUER, OR (iii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
(f) (i) The Purchaser represents that its purchase has full right, power, authority and capacity to enter into this Agreement and to consummate the transactions contemplated hereby and has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and (ii) the execution, delivery and performance of the Bonds Agreement by the Purchaser and its subsequent salethe consummation of the transactions herein contemplated will not violate any provision of the organizational documents of the Purchaser or any statute or any authorization, if anyjudgment, are exempt from SEC Rule 15c2-12;decree, order, rule or regulation of any court or any regulatory body, administrative agency or other governmental body applicable to Purchaser.
(g) The Purchaser acknowledges and agrees understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds First Lien Notes or the Issuer after issuance fairness or suitability of the Bonds, whether investment in connection with any sale the First Lien Notes nor have such authorities passed upon or endorsed the merits of the Bonds by offering of the Purchaser or otherwise;First Lien Notes.
(h) The Purchaser’s principal executive offices are in the jurisdiction set forth under the Purchaser’s signature on the signature block hereto.
(i) The Purchaser acknowledges that the Company, the Guarantors and its counsel will rely upon the accuracy of the foregoing acknowledgments, representations and agreements. The Purchaser agrees that if any of the acknowledgments, representations or agreements that Purchaser is deemed to have made by its purchase of the First Lien Notes is no longer accurate, it shall promptly notify the Company and the Guarantors. If the Purchaser is purchasing the First Lien Notes as a fiduciary or agent for one or more investor accounts, the Purchaser represents that it has all necessary sole investment discretion with respect to each of those accounts and full power to make the above acknowledgments, representations and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms agreements on behalf of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance of the Bondseach account.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. The Purchaser hereby represents and warrants to the Company, and covenants and agrees with the Company, as follows:
a. The Purchaser understands and acknowledges that none of the Shares offered by the Company pursuant to the Offering are registered under the Securities Act of 1933, as amended (athe "Securities Act"), or any state securities laws. The Purchaser understands that the offering and sale of the Shares is intended to be exempt from registration under the Securities Act, by virtue of Section 4(2) and/or Section 4(6) thereof and the provisions of Regulation D promulgated thereunder, based, in substantial part, upon the representations, warranties and agreements of the Purchaser contained in this Subscription Agreement.
b. The Purchaser and the Purchaser's attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the "Advisors") have received, or had made available to it, copies of the following documents of the Company (the "Disclosure Documents"): the Annual Report on Form 10-KSB of the Company for its fiscal year ended September 30, 1999, the Quarterly Report on Form 10-QSB of the Company for the fiscal quarter ended December 31, 1999 and all other documents reasonably requested by the Purchaser. The Purchaser has sufficient knowledge carefully reviewed the Disclosure Documents and experience in financial understands the information contained therein.
c. Neither the Securities and business mattersExchange Commission ("Commission") nor any state securities commission has approved the Shares or the Offering, including purchase and ownership of obligations of a nature similar to or passed upon or endorsed the Bonds to be able to evaluate the risks and merits of the investment represented Offering or confirmed the accuracy or determined the adequacy of this Subscription Agreement. This Subscription Agreement has not been reviewed by the purchase of the Bonds;any Federal, state or other regulatory authority.
(b) d. The Purchaser acknowledges that no offering documentall documents, prospectus or official statement has records, and books pertaining to an investment in the Shares have been prepared made available for inspection by or on behalf of the Issuer in connection with the sale of the Bonds;
(c) As a sophisticated investor, the such Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds Advisors, if any.
e. The Purchaser and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the PurchaserAdvisors, as if any, have had a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive satisfactory answers from knowledgeable Issuer officials and other individuals a person or persons acting on behalf of the Company concerning the Issuer Offering, the Shares and the Bonds. Company and all such questions have been answered to the full satisfaction of the Purchasers and the Advisors, if any.
f. In evaluating the suitability of an investment in the Company, the Purchaser has not relied upon any representation or other information (oral or written) other than as stated in this Subscription Agreement and/or as contained in the Disclosure Documents.
g. The Purchaser represents that it is unaware of, is no way relying on, and did not become aware of the Offering of the Shares through or as a result of any form of general solicitation or general advertising, including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, in connection with the Offering and is not subscribing for the Shares and did not become aware of the Offering through or as a result of any seminar or meeting to which the Purchaser was invited by, or any solicitation of a subscription by, a person not previously known to the Purchaser in connection with investments in securities generally.
h. The Purchaser has received all taken no action which would give rise to any claim by any person for brokerage commissions, finders' fees or the like relating to this Subscription Agreement or the transactions contemplated hereby.
i. The Purchaser, together with the Advisors, have such knowledge and experience in financial, tax, and business matters, and, in particular, investments in securities, so as to enable them to utilize the information it considers material made available to making them in connection with the Offering to evaluate the merits and risks of an investment in the Shares and to make an informed investment decision with respect thereto.
j. The Purchaser is not relying on the Company or any of its investment decisions officers, directors, employees or agents with respect to the Bonds legal, tax, economic and related considerations of an investment in the Shares, and the Purchaser has made such decisions upon its relied on the advice of, or has consulted with, only his own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;Advisors (if any).
(d) The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(e) k. The Purchaser is acquiring the Bonds Shares solely for its such Purchaser's own account, account for investment and not with a present view toto resale or distribution thereof, in whole or for present sale in connection withpart. The Purchaser has no agreement or arrangement, formal or informal, with any distribution of the Bonds person to sell or transfer all or any part thereof; providedof the Shares, howeverand the Purchaser has no plans to enter into any such agreement or arrangement.
l. The Purchaser must bear the substantial economic risks of an investment in the Shares indefinitely because the Shares may not be sold, hypothecated or otherwise disposed of unless subsequently registered under the Securities Act and applicable state securities laws or an exemption from such registration is available. The Purchaser acknowledges that legends shall be placed on the shares of Common Stock, issued pursuant to the conversion of the Preferred Stock, to the effect that they have not been registered under the Securities Act or applicable state securities laws and appropriate notations thereof will be made in the Company's stock books. Stop transfer instructions will be placed with the transfer agent of the Company.
m. The Purchaser has adequate means of providing for such Purchaser's current financial needs and foreseeable contingencies and has no need for liquidity of the investment in the Shares for an indefinite period of time.
n. The Purchaser is aware that an investment in the Shares involves a number of very significant risks and investment considerations.
o. The Purchaser meets the requirements of at least one of the suitability standards for an "accredited investor" under Regulation D promulgated under the Securities Act and as set forth on the Accredited Investor Certification contained herein.
p. The Purchaser: (i) if a natural person represents that the Purchaser retains has reached the right age of 21 and has full power and authority to sell execute and deliver this Subscription Agreement and all other related agreements or certificates and to carry out the Bonds in the provisions hereof and thereof and has adequate means for providing for his or her current financial needs and anticipated future in accordance with the terms of the Trust Agreement;
(f) The Purchaser represents that its purchase of the Bonds needs and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges possible personal contingencies and agrees that the Issuer has not offered emergencies and has no obligation need for liquidity in the investment in the Shares; (ii) if a corporation, partnership, limited liability company or responsibility to provide any disclosure partnership, association, joint stock company, trust, unincorporated organization or other information relating to entity represents that such entity was not formed for the Bonds or specific purpose of acquiring the Issuer after issuance Shares, such entity is duly organized, validly existing and in good standing under the laws of the Bondsstate of its organization, whether in connection with any sale the consummation of the Bonds transactions contemplated hereby is authorized by, and will not result in a violation or breach of any law, regulation, agreement to which it is a party or is otherwise bound or of its charter or other organizational documents; such entity has full power and authority to execute and deliver this Subscription Agreement and all other related agreements or certificates and to carry out the provisions hereof and thereof and to purchase and hold the Shares; the execution and delivery of this Subscription Agreement has been duly authorized by the Purchaser all necessary action; this Subscription Agreement has been duly executed and delivered on behalf of such entity and is a legal, valid and binding obligation of such entity; and (iii) if executing this Subscription Agreement in a representative or otherwise;
(h) The Purchaser fiduciary capacity, represents that it has all necessary full power and authority to enter into execute and deliver this Purchase Subscription Agreement in such capacity and on behalf of the subscribing individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity for whom the Purchaser is executing this Subscription Agreement, and such individual, ▇▇▇▇, partnership, trust, estate, corporation, limited liability company or partnership, or other entity has full right and power to perform pursuant to this Subscription Agreement and to purchase the Bonds as contemplated herein and make an investment in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, Company; and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) This Purchase this Subscription Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium such entity. The execution and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability delivery of this Purchase AgreementSubscription Agreement will not violate or be in conflict with any order, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreementjudgment, or any other injunction, agreement or instrument document to which the Purchaser is a party relating or by which it is bound.
q. Any information which the Purchaser has heretofore furnished or furnishes herewith to the Company is complete and accurate and may be relied upon by the Company in determining the availability of an exemption from registration under Federal and state securities laws in connection with the Offering. The Purchaser will notify and supply corrective information to the Company immediately (and without a specific request therefor) upon the occurrence of any change therein occurring prior to the Company's issuance of the BondsShares.
r. The Purchaser has significant prior investment experience, including investment in non- registered securities. The Purchaser has a sufficient net worth to sustain a loss of its entire investment in the Company in the event such a loss should occur. The Purchaser's overall commitment to investments which are not readily marketable is not excessive in view of his/its net worth and financial circumstances and the purchase of the Shares will not cause such commitment to become excessive. The investment is a suitable one for the Purchaser.
s. No oral or written representations have been made, or oral or written information furnished, to the Purchaser in connection with the Offering which are in any way inconsistent with the information contained herein.
t. The Purchaser acknowledges that, even if the Maximum Amount is raised from the sale of the Shares, the net proceeds thereof will provide the Company with the funds to meet only its most immediate needs and that additional funds will be required by the Company (with the consequent dilution of value and/or ownership) through additional equity and/or debt financing(s), and no assurance can be given as to the availability or adequacy of terms of any such financing(s). In the event that the Company does not obtain the requisite funds, it may be necessary for the Company to reduce, suspend or cease certain of its operations. The Purchaser acknowledges that the Company intends to use the net proceeds of the offering for general purposes within the Company and which includes initiating the development of oral fluid diagnostic disease tests, an effort the Company estimates will cost approximately $4,000,000 during the first two years of the development program.
u. Blue Sky Information: FOR RESIDENTS OF ALL STATES: THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1993, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. FOR CONNECTICUT RESIDENTS: THE SECURITIES HAVE NOT BEEN REGISTERED UNDER SECTION 36-485 OF THE CONNECTICUT UNIFORM SECURITIES ACT AND THEREFORE CANNOT BE RESOLD UNLESS THEY ARE REGISTERED UNDER THE CONNECTICUT UNIFORM SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. FOR FLORIDA RESIDENTS: IF SALES OF THESE SECURITIES ARE CONSUMMATED WITH FIVE OR MORE OFFEREES IN THE STATE OF FLORIDA, ANY SUCH OFFEREE MAY, AT SUCH OFFEREE'S OPTION, VOID ANY PURCHASE HEREUNDER WITHIN THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE PURCHASER TO THE COMPANY, AN AGENT OF THE COMPANY OR AN ESCROW AGENT, OR WITHIN THREE DAYS AFTER THE AVAILABILITY OF THAT PRIVILEGE IS COMMUNICATED TO THE PURCHASER, WHICHEVER OCCURS LATER. FOR VERMONT RESIDENTS: EACH PERSON WHO ACCEPTS AN OFFER TO PURCHASE SECURITIES DIRECTLY FROM THE ISSUER OR AN AFFILIATE OF THE ISSUER SHALL HAVE THE RIGHT TO WITHDRAW HIS ACCEPTANCE WITHOUT INCURRING ANY LIABILITY TO THE SELLER, UNDERWRITER (IF ANY) OR ANY OTHER PERSON WITHIN THREE BUSINESS DAYS AFTER HE MAKES THE INITIAL PAYMENT FOR THE SECURITIES BEING OFFERED.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchaser. (a) The Purchaser has sufficient knowledge and experience in financial and business matters, including purchase and ownership of obligations of a nature similar to the Bonds to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds;
(b) ; The Purchaser acknowledges that no offering document, prospectus or official statement has been prepared by or on behalf of the Issuer in connection with the sale of the Bonds;
(c) ; As a sophisticated investor, the Purchaser has made its own credit inquiry and analysis with respect to the Issuer and the Bonds and has made an independent credit decision based upon such inquiry and analysis. The Issuer has furnished to the Purchaser all the information which the Purchaser, as a reasonable investor, has requested of the Issuer as a result of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;
(d) ; The Purchaser understands that the Bonds have not been registered with any federal or state securities agency or commission;
(e) ; The Purchaser is acquiring the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution of the Bonds or any part thereof; provided, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms of the Trust Agreement;
(f) ; The Purchaser represents that its purchase of the Bonds and its subsequent sale, if any, are exempt from SEC Rule 15c2-12;
(g) ; The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;
(h) ; The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
(i) ; This Purchase Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, to the application of equitable principles and to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) and As of the date hereof, there is no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge of the Purchaser, wherein an unfavorable decision, ruling or finding would: (i) affect the existence or powers of the Purchaser, (ii) enjoin or restrain the purchase of the Bonds, (iii) in any way question or affect the validity or enforceability of this Purchase Agreement, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating to the issuance of the Bonds.
Appears in 1 contract
Sources: Bond Purchase Agreement
Representations, Warranties and Agreements of the Purchaser. The Purchaser represents, warrants and agrees that:
(a) The Purchaser has sufficient knowledge all requisite power and experience in financial authority to execute, deliver and business mattersperform its obligations under this Agreement. This Agreement has been duly and validly authorized, including purchase executed and ownership of delivered by the Purchaser and, when executed and delivered by the Company, will constitute valid and legally binding obligations of a nature similar the Purchaser, enforceable in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the Bonds to be able to evaluate the risks and merits availability of the investment represented by the purchase of the Bonds;specific performance, injunctive relief or other equitable remedies.
(b) The Shares to be acquired by the Purchaser acknowledges that no offering documenthereunder will be acquired for investment for the Purchaser’s own account, prospectus not as a nominee or official statement has been prepared by agent, and not with a view to the resale or on behalf distribution of the Issuer in connection with the sale of the Bonds;any part thereof.
(c) As a sophisticated investor, the The Purchaser has made its own credit inquiry and analysis with respect had an opportunity to discuss the Issuer Company’s business, management, financial affairs and the Bonds terms and conditions of the offering of the Shares with the Company’s management and has made had an independent credit decision based upon such inquiry and analysisopportunity to review the Company’s facilities. The Issuer has furnished to foregoing, however, does not limit or modify the Purchaser all the information which the Purchaser, as a reasonable investor, has requested representations and warranties of the Issuer as a result Company in Section 1 of this Agreement or the right of the Purchaser having attached significance thereto in making its investment decision with respect to the Bonds, and the Purchaser has had the opportunity to ask questions of and receive answers from knowledgeable Issuer officials and other individuals concerning the Issuer and the Bonds. The Purchaser represents that it has received all information it considers material to making its investment decisions with respect to the Bonds and has made such decisions upon its own credit inquiry and analyses. The Purchaser is able and willing to bear the economic risk of the purchase and ownership of the Bonds;rely thereon.
(d) The Purchaser understands that the Bonds Shares have not been been, and will not be, registered with any federal or state securities agency or commission;under the Securities Act, and are being offered and sold by the Company pursuant to the exemption from registration afforded by Rule 903 under the Securities Act.
(e) The Purchaser is acquiring not a U.S. person (as such term is defined in Regulation S under the Bonds for its own account, and not with a present view to, or for present sale in connection with, any distribution Securities Act). At the time of the Bonds or any part thereof; providedorigination of discussion regarding the offer and sale of the Shares and the date of the execution and delivery of this Agreement, however, that the Purchaser retains the right to sell the Bonds in the future in accordance with the terms was at all times outside of the Trust Agreement;United States.
(f) The Purchaser represents that its purchase of the Bonds and its subsequent saleEach certificate, if anyinstrument, are exempt from SEC Rule 15c2-12;
(g) The Purchaser acknowledges and agrees that the Issuer has not offered and has no obligation or responsibility to provide any disclosure or other information relating to the Bonds or the Issuer after issuance of the Bonds, whether in connection with any sale of the Bonds by the Purchaser or otherwise;
(h) The Purchaser represents that it has all necessary power and authority to enter into this Purchase Agreement and to purchase the Bonds as contemplated herein and in the Trust Agreement and has satisfied all legal, statutory, investment policy and any other conditions precedent to entering into this Purchase Agreement or purchasing the Bonds, and that the terms of the sale of the Bonds were negotiated at arm’s length, and the interest rates, terms and security of the Bonds are reasonable market interest rates, terms and security, comparable to other similar obligations;
book entry representing (i) This Purchase Agreement constitutes a legal, valid the Shares and binding obligation (ii) any other securities issued in respect of the securities referenced in clauses (i) upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall be notated with a legend substantially in the following form: THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION OF THE SECURITIES ACT OF 1933. The Purchaser enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting the enforcement of creditor’s rights, consents to the application of equitable principles Company making a notation in its records and giving instructions to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities in the State of California; and
(j) As any transfer agent of the date hereofShares or such securities in order to implement the restrictions on transfer set forth in this Agreement. The foregoing legend shall be removed from the certificate, there is instrument or book entry evidencing the Shares and the Company shall, or shall cause its transfer agent to, issue, no action, suit, proceeding or investigation before or by any California court, public board or body pending or threatened to the actual knowledge later than three Business Days after receipt of a request from the Purchaser, wherein an unfavorable decisiona certificate or certificates evidencing all or a portion of the Shares, ruling or finding wouldas requested by the Purchaser, without such legend if: (i) affect such Shares have been resold under an effective registration statement under the existence or powers of the PurchaserSecurities Act, (ii) enjoin or restrain the purchase of the Bondssuch Shares have been transferred in compliance with Rule 144, (iii) in any way question or affect all of such Shares are eligible for resale pursuant to Rule 144 under the validity or enforceability of this Purchase AgreementSecurities Act without restriction, or (iv) in any way question or affect the transactions contemplated by this Purchase Agreement, or any other agreement or instrument to which the Purchaser is a party relating shall have provided the Company with an opinion of counsel reasonably acceptable to the issuance Company, the form and substance of which opinion shall be reasonably satisfactory to the BondsCompany, stating that such Shares may lawfully be transferred without registration under the Securities Act and that the foregoing legend may be removed following such transfer.
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