Subscriber's Representations and Warranties. Subscriber represents, warrants, acknowledges and agrees that: (a) Subscriber is a resident of the state indicated on the signature page hereof, is legally competent to execute this Subscription Agreement, and: (i) if Subscriber is an individual, has his or her principal residence in such state; (ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or (iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common Stock. (b) Subscriber has not been offered the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. (c) Subscriber has had access during the course of this transaction and prior to the issuance of the Common Stock to all information necessary to enable Subscriber to evaluate the merits and risks of a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Subscriber have been answered to the full satisfaction of Subscriber. (d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need to bear the economic risk of the investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency. (e) Subscriber understands that the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment. (f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock. (g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so. (h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company. (i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock. (j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company. (k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
Appears in 1 contract
Subscriber's Representations and Warranties. Subscriber represents, warrants, acknowledges and agrees that:
(a) Subscriber is a resident of the state indicated on the signature page hereof, is legally competent to execute this Subscription Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence in such state;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common Stock.
(b) Subscriber has not been offered the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Subscriber has had access during the course of this transaction and prior to the issuance of the Common Stock to all information necessary to enable Subscriber to evaluate the merits and risks of a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need to bear the economic risk of the investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency.
(e) Subscriber understands that the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the CompanyCompany (other than those set forth in the PSA), and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Except for Subscriber’s intention to distribute the shares (or cause them to be issued directly) to its members, pro-rata, Subscriber is purchasing acquiring the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
Appears in 1 contract
Subscriber's Representations and Warranties. Subscriber represents, warrants, acknowledges represents and agrees warrants that:
(a) Subscriber is a resident of understands the state indicated on Company’s business, as described in the signature page hereof, is legally competent to execute this Subscription Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence in such stateSEC Documents;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common Stock.
(b) Subscriber has not been offered received copies of and has had reasonable opportunity to review each of the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.SEC Documents;
(c) Subscriber has had access during the course of this transaction been furnished with all additional documents and prior to the issuance of the Common Stock to all information necessary to enable which Subscriber to evaluate the merits and risks of a prospective investment in the Company has requested;
(including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers Company and directors of its management and other representatives concerning (i) the Company, or a person or persons acting on its behalf, concerning (ii) the terms and conditions of the Company’s offering of Series C Shares, and all questions raised by Subscriber have been answered to (iii) the full satisfaction merits and risks of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need to bear the economic risk of the investment investing in the Common Stock for an indefinite period of time Series C Shares and will not be readily able to liquidate the investment in case of an emergency.any common stock issuable upon conversion thereof;
(e) Subscriber understands has been afforded (i) access to information about the Company and its subsidiaries and their respective financial condition, results of operations, business, properties, management and prospects, sufficient to enable Subscriber to evaluate its investment, and (ii) the opportunity to obtain such additional information that the Company has a limited financial possesses or operating historycan acquire without unreasonable effort or expense that is necessary to verify the accuracy of the information furnished or to permit Subscriber to make an informed decision with respect to an investment in the Series C Shares, including the Common Stock is a speculative investment which involves a high degree information contained in each of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.the SEC Documents;
(f) In Subscriber has relied only on the information in, or referred to in, the Memorandum and the documents delivered with the Memorandum when making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock.subscription;
(g) If The information furnished by the Company does not constitute investment, accounting, legal or tax advice and Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement relying on behalf of its own professional advisers for such entity has been duly authorized by such entity to do so.advice;
(h) No representations or warranties have been made to Subscriber by and Subscriber’s advisers (which advisers do not include the Company or any officerits officers, employeedirectors, agent representatives or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(icounsel) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has have such knowledge and experience in legal, financial and business matters that Subscriber is as to be capable of evaluating the merits and risks of an investment investing in the Common Stock Company and has of making an informed investment decision with respect thereto;
(i) Subscriber understands, acknowledges and agrees that the capacity Company is relying solely upon the representations and warranties made herein in determining to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in sell Subscriber the Common Stock.Series C Shares;
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in Except as otherwise specifically disclosed herein, the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means not paid or given any commission, remuneration or other thing of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate value in connection with the investment in purchase of the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.Series C Shares;
(k) The Subscriber has is not purchasing the Series C Shares as a preexisting business result of any advertisement, article, notice or personal relationship other communication or general solicitation regarding the Series C Shares or the Company, and no solicitation, offer to sell or offer to buy was made to or from Subscriber with respect to the Series C Shares other than in the Commonwealth of Pennsylvania or the state of such Subscriber’s domicile as set forth on the signature page hereto;
(l) The Subscriber understands the meaning and legal consequences of the foregoing representations and warranties. The Subscriber certifies that each of the foregoing representations and warranties is true and correct as of the date hereof and shall survive the execution hereof and the purchase of the Series C Shares; and
(m) Subscriber understands, acknowledges and agrees that officers, directors and other employees of the Company may also be subscribing for Series C Shares in this Offering or entering into other transactions with the Company and that the Subscriber will not have any ability to review, approve or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans otherwise consent to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization subscriptions or transfertransactions.
Appears in 1 contract
Subscriber's Representations and Warranties. Each Subscriber represents, warrants, acknowledges hereby represents and warrants to and agrees with the Company as to such Subscriber that:
(a) Information on Company. The Subscriber is a resident has been furnished with or has obtained from the EDGAR Website of the state indicated Secur▇▇▇▇▇ and Exchange Commission (the "Commission") the Company's Form 10-KSB for the year ended December 31, 2002 as filed with the Commission, together with all subsequently filed Forms 10- QSB, 8-K, and filings made with the Commission available at the EDGAR website (hereinafter ▇▇▇▇rred to collectively as the "Reports"). In addition, the Subscriber has received in writing from the Company such other information concerning its operations, financial condition and other matters as the Subscriber has requested in writing (such other information is collectively, the "Other Written Information"), and considered all factors the Subscriber deems material in deciding on the signature page hereof, is legally competent to execute this Subscription Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence advisability of investing in such state;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common StockSecurities.
(b) Information regarding Subscriber. The Subscriber has not been offered is, and will be at the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Subscriber has had access during the course of this transaction and prior to the issuance time of the Common Second Closing and the date of conversion of the Series B Stock to all information necessary and exercise of any of the Warrants, an "accredited investor", as such term is defined in Regulation D promulgated by the Commission under the Securities Act of 1933, as amended (the "1933 Act"), is experienced in investments and business matters, has made investments of a speculative nature and has purchased securities of United States publicly-owned companies in private placement offerings in the past and, with its representatives, has such knowledge and experience in financial, tax and other business matters as to enable the Subscriber to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed investment decision with respect to the proposed purchase, which represents a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and speculative investment. The Subscriber has had the opportunity authority and is duly and legally qualified to ask questions of purchase and receive answers from own the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Securities. The Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need is able to bear the economic risk of the such investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate afford a complete loss thereof. The information set forth on the investment in case of an emergency.
(e) Subscriber understands that signature page hereto regarding the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stockaccurate.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
Appears in 1 contract
Subscriber's Representations and Warranties. The Subscriber represents, warrants, acknowledges hereby represents and warrants to and agrees with the Company that:
(a) Information on Company. The Subscriber is a resident of has been furnished with the state indicated Company's Prospectus dated May 14, 2001, Form 10-KSB for the year ended December 31, 2000, as filed with the Securities and Exchange Commission (the "Commission") together with all subsequent forms 10-Q and forms 8-K, and any amendments to any such forms 10-K, 10-Q and 8-K filed prior to the date hereof (collectively, the "Reports"). In addition, the Subscriber has received from the Company such other information concerning its operations, financial condition and other matters, as the Subscriber has requested, and the Subscriber has considered all factors the Subscriber deems material in deciding on the signature page hereofadvisability of investing in the Securities (such information in writing is collectively, is legally competent to execute this Subscription Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence in such state;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common Stock"Other Written Information").
(b) Information on Subscriber. The Subscriber is an "accredited investor," as such term is defined in Regulation D promulgated by the Commission under the Securities Act of 1933, as amended (the "1933 Act"), is experienced in investments and business matters, has not been offered made investments of a speculative nature and has purchased securities of United States publicly-owned companies in private placements in the Common Stock by any form of general solicitation or general advertisingpast and, including but not limited to any advertisementwith its representatives, articlehas such knowledge and experience in financial, notice or tax and other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Subscriber has had access during the course of this transaction and prior to the issuance of the Common Stock to all information necessary business matters as to enable the Subscriber to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed investment decision with respect to the proposed purchase, which represents a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and speculative investment. The Subscriber has had the opportunity authority and is duly and legally qualified to ask questions of purchase and receive answers from own the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Securities. The Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need is able to bear the economic risk of the such investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency.
(e) Subscriber understands that the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stockafford a complete loss thereof.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
Appears in 1 contract
Sources: Subscription Agreement (Advanced Aerodynamics & Structures Inc/)
Subscriber's Representations and Warranties. Each Subscriber represents(for itself, warrantshimself or herself and not for the others) represents and warrants to, acknowledges and agrees thatcovenants with, Newco and each other Subscriber as follows:
(a4.1 The Subscriber is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
4.2 If a natural person, the Subscriber is a bona fide resident of the state indicated contained in the address set forth on the signature page hereof, of this Agreement and is legally competent to execute this Subscription Agreement. If an entity, the Subscriber is duly authorized to execute this Agreement and this Agreement constitutes the legal, valid and binding obligation of the Subscriber enforceable against the Subscriber according to its terms.
4.3 Regarding Newco and the Company, its business, plans and financial condition, the terms of the offering and the risks associated therewith, and any other matters relating to this Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence in such state;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, the Subscriber has not been organized for the specific purpose of acquiring the Common Stock.
(b) Subscriber has not been offered the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees received all materials which have been invited requested by any general solicitation the Subscriber; has had a reasonable opportunity to ask questions of Newco and the Company and their representatives; and Newco and the Company have answered all inquiries that the Subscriber or general advertising.
(c) the Subscriber's representatives have put to it. The Subscriber has had access during the course of this transaction and prior to the issuance of the Common Stock to all information additional information, and has taken all the steps necessary to enable Subscriber to evaluate the merits and risks of a prospective an investment in Newco.
4.4 The Subscriber has, and reasonably can be assumed to have, such knowledge and experience in finance, securities, investments and other business matters that the Subscriber is capable of utilizing the information that is available to the Subscriber concerning Newco and the Company to evaluate the risks of investment in Newco and understands and acknowledges that (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need this investment is suitable only for an investor who is able to bear the economic risk consequences of losing his, her or its entire investment, (b) the acquisition of the investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency.
(e) Subscriber understands that the Company has a limited financial or operating history, the Common Newco Stock is a speculative investment which involves a high degree of financial riskrisk of loss of the entire investment, (c) any predictions or projections as to Newco's or the Company's future performance are necessarily subject to a high degree of uncertainty, and that Newco makes no representations or warranties as to the realization of such predictions or projections, and (d) there are substantial restrictions on the transferability of, and there is will be no assurance of public market for, the Newco Stock, and accordingly, it may not be possible for the Subscriber to liquidate his, her or its investment in the Newco Stock at a time when it may be desirable to do so, or at any economic, income or tax benefit from such investmentother time.
4.5 The Subscriber confirms that he, she or it is able (fa) In making to bear the economic risk of this investment, Subscriber is relying solely upon (b) to hold the advice Newco Stock for an indefinite period of time, and (c) afford a complete loss of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company investment; and the person signing Subscriber has sufficient liquid assets so that the illiquidity associated with this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment any undue financial difficulties or affect the Subscriber's ability to become excessive. Subscriber has adequate means of providing provide for Subscriber’s his, her or its current needs and possible personal and family financial contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity that the Subscriber's commitment to all speculative investments (including this one) is reasonable in this investment in relation to the CompanySubscriber's net worth and/or annual income.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. 4.6 The Subscriber is purchasing acquiring the Common Newco Stock solely for the Subscriber’s 's own account account, for investment (and purposes only, not for the account of any other person), and not with a view to, to the sale or for, distribution thereof or the granting of any resale, distribution, fractionalization or other transfer thereofparticipation therein, and Subscriber has no present plans intention of distributing or selling to enter into others any of such interest or granting participations therein. The Subscriber does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to the Newco Stock.
4.7 The Subscriber is aware that the Newco Stock has not been registered under the Securities Act or any state or foreign securities or "blue sky" laws, that the Newco Stock will be issued on the basis of the statutory exemption provided by Section 4(2) of the Securities Act, relating to transactions by an issuer not involving any public offering and under similar exemptions under certain state securities or "blue sky" laws, that this offering has not been reviewed by, passed on or submitted to any federal or state agency or self-regulatory organization where an exemption is being relied upon, and that Newco's reliance thereon is based, in part, upon the truth, completeness and accuracy of the representations made by the Subscriber in this Agreement.
4.8 The Subscriber acknowledges that it is familiar with the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder on the transfer of securities. In particular, the Subscriber agrees that no sale, assignment or transfer of any Newco Stock by the Subscriber shall be valid or effective, and Newco shall not be required to give any effect to such sale, assignment or transfer, unless: (a) (i) such sale, assignment or transfer is registered under the Securities Act and applicable state securities or "blue sky" laws (collectively, "SECURITIES LAWS"), it being understood that the Newco Stock is not currently registered for sale and that Newco has no obligation or intention to so register the Newco Stock, or (ii) the Newco Stock is sold, assigned or transferred in accordance with all the requirements and limitations of Rule 144 under the Securities Act, it being understood that Rule 144 is not available at the present time for the sale of the Newco Stock, or (iii) such sale, assignment or transfer is otherwise exempt from the registration requirements of Securities Laws; and (b) such sale, assignment or transfer is in compliance with any applicable agreement by and among Newco and any one or more of the Subscribers relating to the Newco Stock. The Subscriber consents that Newco may, if it desires, permit the transfer of the Newco Stock out of his, her or its name only when the request for transfer is accompanied by an opinion of counsel, which counsel and opinion are reasonably satisfactory to counsel to Newco, that neither the sale nor the proposed transfer results in a violation of Securities Laws.
4.9 The Subscriber acknowledges that the certificates evidencing the Newco Stock shall bear the following, or substantially similar legends, and such other legends may be required by state securities or "blue sky" laws: "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF ________________, 2000, AS THE SAME MAY BE AMENDED FROM TIME TO TIME (THE "STOCKHOLDERS' AGREEMENT"), BY AND AMONG VARIOUS INDIVIDUAL SIGNATORIES THERETO AND THE COMPANY, A COPY OF WHICH IS AVAILABLE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER OR OTHER DISPOSITION OF SUCH SHARES BY THE HOLDER THEREOF IS SUBJECT TO THE TERMS OF THE STOCKHOLDERS' AGREEMENT, WHICH PROVIDES, AMONG OTHER THINGS, THAT UNDER SPECIFIED CIRCUMSTANCES THE COMPANY AND OTHER SPECIFIED PERSONS HAVE THE RIGHT TO PURCHASE SUCH SHARES FROM THE HOLDER THEREOF." "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES OR "BLUE SKY" LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS, OR (2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS."
4.10 The Subscriber acknowledges that this offering may involve tax consequences and that he, she or it is not relying on any statements or representations of Newco or any of its agents, employees or affiliates with respect to the tax and other economic considerations of an investment in the Newco Stock and acknowledges that the Subscriber must retain his, her or its own professional advisors to evaluate the federal, state and local tax and other economic considerations of an investment in the Newco Stock. The Subscriber also acknowledges that he, she or it is solely responsible for any of his, her or its own tax liability that may arise as a result of this investment or the transactions contemplated by this Agreement.
4.11 The Subscriber confirms that, except as expressly set forth in this Agreement, no representations or warranties have been made to the Subscriber by Newco or any agent, employee or affiliate of Newco, and in entering into this transaction, the Subscriber is not relying on any information, other than the results of independent investigation by the Subscriber.
4.12 The Subscriber is the record and beneficial owner of the Shares listed opposite his, her or its name on Schedule 1 and will assign such resaleShares to Newco on the terms and subject to the conditions set forth in this Agreement free and clear of all liens, distributionclaims, fractionalization or transferand encumbrances.
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Subscriber's Representations and Warranties. Each Subscriber represents, warrants, acknowledges hereby represents and warrants to and agrees with the Company only as to such Subscriber that:
(a) Information on the Company. The Subscriber is a resident has been furnished with, or has obtained from the EDGAR website of the state indicated Commiss▇▇▇, the Company's Form 20-F for the fiscal year ended December 31, 2002 as filed with the Commission, together with all subsequently filed Forms 6-K, and filings made with the Commission available at the EDGAR website (hereinafter ▇▇▇▇rred to collectively as the "Reports"). In addition, the Subscriber has received in writing from the Company such other information concerning its operations, financial condition and other matters as the Subscriber has requested in writing (such other information is collectively, the "Other Written Information"), and considered all factors the Subscriber deems material in deciding on the signature page hereofadvisability of investing in the Securities. The Subscriber acknowledges that it has been afforded the opportunity to ask questions and receive answers from duly authorized representatives of the Company concerning the Company's business, is legally competent operations, financial condition, management and the terms and conditions of the sale of the Shares and the Warrants pursuant to execute this Subscription Agreement, and:
(i) if Subscriber is an individual, has his or her principal residence in such state;
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, Subscriber has not been organized for the specific purpose of acquiring the Common Stock.
(b) Information on the Subscriber. The Subscriber has not been offered is, and will be at the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Subscriber has had access during the course of this transaction and prior to the issuance time of the Common Stock to all information necessary exercise of any of the Warrants, an "accredited investor", as such term is defined in Regulation D, is experienced in investments and business matters, has made investments of a speculative nature and has purchased securities of publicly-owned companies in private placements in the past and, with its representatives, has such knowledge and experience in financial, tax and other business matters as to enable the Subscriber to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed investment decision with respect to the proposed purchase, which represents a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and speculative investment. The Subscriber has had the opportunity authority and is duly and legally qualified to ask questions of purchase and receive answers from own the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Securities. The Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need is able to bear the economic risk of the such investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate afford a complete loss thereof. The information set forth on the investment in case of an emergency.
(e) Subscriber understands that signature page hereto regarding the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stockaccurate.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, of the Company.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
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Subscriber's Representations and Warranties. Subscriber represents, warrants, acknowledges and agrees that:
(a) Subscriber is a resident of the state indicated on the signature page hereof, is legally competent In order to induce Issuer to execute this Subscription AgreementAgreement and to consummate the transactions set forth therein, andSubscriber hereby represents, warrants and covenants to Issuer as follows:
(i) if 4.1. Subscriber acknowledges that it has had the opportunity to obtain additional information beyond the Offering Material in order to verify the information contained in the Offering Material and to evaluate the risks of an investment in the Securities. With respect to individual or partnership tax and other economic considerations involved in this investment, Subscriber is not relying on the Company (or any agent or representative of the Company). Subscriber has carefully considered and has, to the extent Subscriber believes such discussion necessary, discussed with Subscriber’s legal, tax, accounting and financial advisers the suitability of an individualinvestment in the Securities for Subscriber’s particular tax and financial situation.
4.2. Subscriber acknowledges that it has had the opportunity to ask questions of and receive answers from qualified representatives of Issuer concerning the terms and conditions of this Agreement and of the Securities to be issued hereunder, as well as the information contained in the Offering Material, and it has his been granted access, prior to subscribing to the Securities and prior to the purchase thereof, to all books, records and documents of Issuer and its subsidiaries.
4.3. Subscriber acknowledges that its attention has been specifically called to, and that its representatives or her principal residence agents have carefully read, the Offering Material, drafts of the preliminary proxy statement to be filed with the Securities and Exchange Commission in connection with the transaction contemplated hereby, all documents referred to and incorporated therein and any other material received by Subscriber from the Issuer and fully understands the risk involved in the investment.
4.4. Subscriber acknowledges that it is a sophisticated investor familiar with the type of risks inherent in the acquisition of securities such state;as the Securities and that, by reason of its knowledge and experience in financial and business matters in general, and investments of this type in particular, and the knowledge and experience in financial and business matters of its representatives and agents, it is capable of evaluating the merits and risks of an investment by it in the Securities.
(ii) if 4.5. Subscriber’s financial condition is such that it is under no present need, in order to satisfy any existing or contemplated understanding or indebtedness, to dispose of any portion of the Securities which it is purchasing hereunder. Subscriber is a corporationable to bear the economic risk of an investment in the Securities, partnershipincluding, trustwithout limiting the generality of the foregoing, limited liability company the risk of losing part or other form all of business organization, has its principal office investment in such state; orthe Securities and its probable inability to sell or transfer the Securities for an indefinite period of time.
(iii) if 4.6. Subscriber is a corporationnot acquiring the Securities for the purpose of or in connection with any distribution within the meaning of the Act or Other Securities Laws in violation of the Act or Other Securities Laws.
4.7. Subscriber understands that, partnership, trust, limited liability company or other form of business organization, Subscriber has because the Securities have not been organized registered under the Act or Other Securities Laws, the Securities therefore must be held indefinitely unless the Securities are subsequently registered under the Act and Other Securities Laws or until an exemption from such registration thereunder is available.
4.8. Subscriber is aware that any sales which may be made in reliance upon Rule 144 promulgated under the Act, may be made only if Issuer is in compliance with the reporting and other requirements under Rule 144, and then only in limited amounts, after the required holding periods, and otherwise in accordance with the terms and conditions of Rule 144.
4.9. Subscriber acknowledges that it is an “accredited investor” within themeaning of Rule 501(a) of Regulation D promulgated under the Act.
4.10. This Agreement has been duly authorized, executed and delivered on behalf of Subscriber and constitutes the valid and binding obligation of the Subscriber enforceable against Subscriber in accordance with its terms.
4.11. Subscriber recognizes that investment in the Securities involves substantial risks. Subscriber further recognizes that no Federal or State agencies have passed upon this offering of the Securities or made any findings or determination as to the fairness of this investment.
4.12. Subscriber is not subscribing for the specific purpose Securities as a result of acquiring the Common Stock.
(b) Subscriber has not been offered the Common Stock by any form of general solicitation or general advertising, including but not limited subsequent to any advertisement, article, notice or of other communication published in any newspaper, magazine, or similar media or broadcast over television or radioradio or presented at any seminar.
4.13. If this Agreement is executed and delivered on behalf of a partnership, corporation, trust or estate: (i) such partnership, corporation, trust or estate has the full legal right and power and all authority and approval required (a) to execute and deliver, or any seminar authorize execution and delivery of, this Agreement and all other instruments executed and delivered by or meeting whose attendees have been invited by any general solicitation on behalf of such partnership, corporation, trust or general advertising.
estate in connection with the purchase of the Securities, (b) to delegate authority pursuant to a power of attorney and (c) Subscriber has had access during to purchase and hold such Securities; (ii) the course of this transaction and prior to the issuance signature of the Common Stock to all party signing on behalf of such partnership, corporation, trust or estate is binding upon such partnership, corporation, trust or estate; and (iii) such partnership, corporation or trust has not been formed for the specific purpose of acquiring the Securities, unless each beneficial owner of such entity is qualified as an “accredited investor” within the meaning of Regulation D promulgated under the Act and has submitted information necessary to enable substantiating such individual qualification.
4.14. Subscriber to evaluate acknowledges that Issuer has relied on the merits representations contained herein and risks that the statutory basis for exemption from the requirements of a prospective investment Section 5 of the Act may not be present if, notwithstanding such representations, Subscriber were acquiring the Securities for resale or distribution upon the occurrence or non-occurrence of some predetermined event.
4.15. None of the information supplied by Subscriber for inclusion or incorporation by reference in the Company proxy statement (including, without limitation, the periodic and other reports filed by the Company “Proxy Statement”) used in connection with the U.S. solicitation of proxies at its Special Meeting (the “Special Meeting”) held to seek approval of transactions contemplated herein shall, at the time it is filed with the Securities and Exchange Commission Commission, at the time it is first mailed to Issuer’s shareholders or at the time of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
4.16. Except as set forth on Schedule Error! Reference source not found., neither Subscriber nor any of its affiliates (the “SEC”) under as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended 1934 (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers and directors of the Company) (“Affiliates”) or representatives is party to, or a person is bound by any contract, agreement, arrangement or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Subscriber have been answered to the full satisfaction of Subscriber.
understanding (dwhether written or not) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need to bear the economic risk of the investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency.
(e) Subscriber understands that the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects Issuer or any of an investment its Subsidiaries or any securities of Issuer or any of its Subsidiaries, including without limitation, any (i) contract, agreement, arrangement or understanding (whether written or not) which requires such party to (x) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interest in, Issuer or any of its Subsidiaries or (y) vote or dispose of any shares of capital stock of, or other equity or voting interest in the Common StockIssuer or any of its Subsidiaries or (ii) irrevocable proxy, voting agreement or similar agreement, arrangement or understanding (whether written or not) with respect to any shares of capital stock of Issuer or any of its Subsidiaries.
(g) If 4.17. Except as set forth in Schedule 4.17, neither Subscriber nor any of its Affiliates or representatives possesses, directly or indirectly, any financial, equity, voting or management interest, or is a corporationdirector, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder of the Company and the person signing this Subscription Agreement on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate Affiliate of LC Acquisition Corp or Union Square Partners.
4.18. Except as set forth on Schedule Error! Reference source not found., the execution, delivery and performance of this Agreement by Subscriber, and the taking of all action contemplated hereby and the other ancillary agreements contemplated hereby, will not result in any violation of or conflict with or constitute a default under any term of Subscriber’s Articles or Certificate, as the case may be, of Incorporation, or bylaws, or of any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to it (which violation or conflict would materially adversely affect the property, business, operations or financial condition of Subscriber), or result in the creation of any mortgage, lien, charge or encumbrance upon any of the Company, properties or assets of Subscriber pursuant to any such term.
4.19. Subscriber agrees that its representations and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligence, if any, warranties contained in this Agreement shall survive the closing of the Companytransactions contemplated by this Agreement.
(i) Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that Subscriber is capable of evaluating the merits and risks of an investment in the Common Stock and has the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth and an investment in the Common Stock will not cause such aggregate commitment to become excessive. Subscriber has adequate means of providing for Subscriber’s current needs and possible personal and family contingencies. Subscriber will not be readily able to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k) Subscriber has a preexisting business or personal relationship with the Company or with one or more of its officers or directors. Subscriber is purchasing the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transfer.
Appears in 1 contract
Subscriber's Representations and Warranties. The Subscriber hereby represents, warrants, warrants and/or acknowledges and agrees to the Company that:
(a) 3.1 The Subscriber has carefully reviewed and understands the risks of, and other considerations relating to, ownership of the Shares.
3.2 The Subscriber has been afforded the opportunity to obtain all the information necessary to verify the accuracy of any representations or information and has had all of their inquiries to the Company answered in full.
3.3 The Subscriber is acquiring the Shares for which it hereby subscribes as a resident principal for its own investment account, and not with a view to the resale or distribution of all or any part thereof. The Subscriber is not purchasing the state indicated Shares for the account or on behalf of any U.S. Person (which, for the signature page hereof, is legally competent to execute purposes of this Subscription Agreement, and:shall have the definition ascribed thereto in Regulation S promulgated under the Securities Act (“Regulation S”)).
(i) if 3.4 The offer of the Shares to the Subscriber was not made by any public or general means or pursuant to any public or general solicitation.
3.5 The Subscriber is an individualaccredited investor, has his or her principal residence as defined in such state;Rule 501 of Regulation D promulgated pursuant to the Securities Act.
(ii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, has its principal office in such state; or
(iii) if Subscriber is a corporation, partnership, trust, limited liability company or other form of business organization, 3.6 The Subscriber has not been organized for evaluated the specific purpose of acquiring the Common Stock.
(b) Subscriber has not been offered the Common Stock by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Subscriber has had access during the course of this transaction and prior to the issuance of the Common Stock to all information necessary to enable Subscriber to evaluate the merits and risks of a prospective investment in the Company (including, without limitation, the periodic and other reports filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and Subscriber has had the opportunity to ask questions of and receive answers from the officers and directors of the Company, or a person or persons acting on its behalf, concerning the terms and conditions of the offering and all questions raised by Subscriber have been answered to the full satisfaction of Subscriber.
(d) There are substantial restrictions on the transferability of the Common Stock and, accordingly, Subscriber will need to bear the economic risk of the investment in the Common Stock for an indefinite period of time and will not be readily able to liquidate the investment in case of an emergency.
(e) Subscriber understands that the Company has a limited financial or operating history, the Common Stock is a speculative investment which involves a high degree of financial risk, and there is no assurance of any economic, income or tax benefit from such investment.
(f) In making this investment, Subscriber is relying solely upon the advice of Subscriber's personal tax advisors, and not the Company nor its advisers and counsel, with respect to the tax aspects of an investment in the Common Stock.
(g) If Subscriber is a corporation, partnership, trust, limited liability company, employee benefit plan or other entity, Subscriber is authorized and qualified to become a stockholder owning Shares of the Company and the person signing has substantial experience in making investment decisions of this Subscription Agreement type or is relying on behalf of such entity has been duly authorized by such entity to do so.
(h) No representations or warranties have been made to Subscriber by the Company or any officer, employee, agent or affiliate of the Company, and Subscriber's investment decision has been based solely upon Subscriber's independent evaluation and due diligenceits professional advisors, if anyapplicable, of the Company.
(i) in making this investment decision. The Subscriber is experienced in evaluating and investing in early stage companies such as the Company. Subscriber is experienced in business matters and regards himself, herself or itself as a sophisticated investor able to evaluate investment and financial information and to choose independent professional advisors to assist in such evaluation and, either alone or with such advisers, has such knowledge and experience in financial and business matters that the Subscriber is capable of evaluating the merits and risks (including, without limitation, the risks described in Section 2 and 3.7 herein) of the Subscriber’s investment and is able to bear such risks, and has obtained, in the Subscriber’s judgment, sufficient information from the Company or its authorized representatives to evaluate the merits and risks of such investment. The Subscriber has evaluated the risks of investing in the Company and has determined that an investment in the Common Stock and has Company is a suitable investment for the capacity to protect Subscriber’s own interests in connection with Subscriber’s proposed investment in the Common Stock.
(j) Subscriber’s aggregate commitments to investments that are not readily marketable are not disproportionate to Subscriber’s net worth 3.7 The Subscriber understands the fundamental aspects of and risks involved in an investment in the Shares, including, but not limited to, (1) the speculative nature of the investment, (2) the financial hazards involved, including the risk of losing the entire investment, and (3) the lack of liquidity and the restrictions on transferability of the Shares, until the resale of the Shares is registered. The Subscriber acknowledges that these risk factors have been explained to the Subscriber and that the Subscriber has carefully considered them in making its evaluation of the merits of this investment. Other risk factors, included but are not limited to, those discussed in the section entitled “Risk Factors” contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010, as filed with the Securities and Exchange Commission on March 31, 2011 and in our most recent Quarterly Report on Form 10-Q, which are incorporated herein by reference in its entirety, as well as any amendment or update thereto reflected in subsequent filings with the Securities and Exchange Commission (“SEC”).
3.8 The Subscriber is not a U.S. Person, was not formed under the laws of any United States jurisdiction and was not formed for the purpose of investing in securities not registered under the Securities Act.
3.9 The Subscriber has not made any pre-arrangement to transfer any of the Shares to a U.S. Person or to return any of the Shares to the United States securities markets (which includes short sales and hedging transactions in the United States within the periods restricted under Regulation S (the “Restricted Periods”) to be covered by delivery of any of the Shares) and is not acquiring the Shares as part of any plan or scheme to evade the registration requirements of the Securities Act.
3.10 The Subscriber acknowledges and understands that all offers and sales of any of the Shares by it in the United States or to U.S. Persons or otherwise, whether prior to the expiration or after the expiration of the Restricted Periods, shall be made only pursuant to a registration of the resale of such Shares under the Securities Act or an exemption from registration requirements of the Securities Act.
3.11 The Subscriber has not engaged in any “directed selling efforts” (as defined in Regulation S) in the United States regarding any of the Shares, nor has it engaged in any act intended to or that reasonably might have the effect of preconditioning the U.S. market for the resale of any of the Shares.
3.12 The Subscriber is not a “distributor” as defined in Regulation S and is not an officer, director or “affiliate” (as that term is defined in Rule 405 under the Securities Act) of the Company or an “underwriter” or “dealer” (as such terms are defined in the federal securities laws of the United States).
3.13 The Subscriber does not have a short position in, or other hedged position with respect to, the Shares or any other shares of the Common Stock and will not cause have a short position in, or other hedged position with respect to, such aggregate commitment securities at any time prior to become excessivethe expiration of the Restricted Periods.
3.14 The Subscriber is (1) authorized and otherwise duly qualified to purchase and hold the Shares, (2) has its principal place of business at its address set forth on the Subscription Agreement Signature Page hereof, and (3) has not been formed for the specific purpose of acquiring the Shares. The person executing this Subscription Agreement and all other documents related to the sale of the Shares hereby represents that he is duly authorized to execute and deliver all such documents on behalf of the Subscriber.
3.15 All of the information that the Subscriber has adequate means heretofore furnished to the Company, or that is set forth herein with respect to itself, its financial position, and its business and investment experience, is correct and complete as of providing for Subscriber’s current needs and possible personal and family contingencies. the date hereof, and, if there should be any material change in such information prior to the closing of the sale of Shares, the Subscriber will not be readily able immediately furnish the revised or corrected information to liquidate the investment in the case of an emergency, and Subscriber has no need for liquidity in this investment in the Company.
(k3.16 The Subscriber consents to the placement of a legend on any certificate(s) or other document evidencing the Shares that the sale of such securities has not been registered under the Securities Act and setting forth or referring to the restrictions on transferability and sale thereof, until such time as the Shares are registered. The Subscriber has is aware that the Company will make a preexisting business or personal relationship notation in its appropriate records with respect to the restrictions on the transferability of such securities.
3.17 The Subscriber acknowledges it is aware of and agrees to comply with the Company or with one or more Securities Exchange Act of 1934, as amended, including Section 13 thereunder, pertaining to its officers or directors. Subscriber is purchasing holding of the Common Stock solely for Subscriber’s own account for investment (and not for the account of any other person), and not with a view to, or for, any resale, distribution, fractionalization or other transfer thereof, and Subscriber has no present plans to enter into any contract, undertaking, agreement or arrangement for any such resale, distribution, fractionalization or transferShares.
Appears in 1 contract