Subscriber’s Representations, Warranties and Agreements Sample Clauses: 2k Samples

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and Holdings and agrees with the Company and Holdings as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 3 contracts

Sources: Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc), Subscription Agreement (TETE Technologies Inc)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming this Subscription Agreement constitutes a the valid and binding ~~obligation~~ agreement of ~~Subscriber~~the other parties hereto, then this Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if an Israeli resident or entity, is an investor in one of the categories listed in the First Addendum to the Israeli Securities Law, 5728-1968 (the “Securities Law”) and set forth in Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor who is investing in the Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (~~iii~~iv) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the Securities Law, and that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands ~~and agrees~~ that (A) the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and ~~that~~ in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under the Securities Law, and (C) any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Issuer, the Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber acknowledges that Credit Suisse Securities (USA) LLC and ▇▇▇▇▇ and Company, LLC (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares (including information related to the Issuer, the Company, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agents or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives (including the Placement Agents), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity ~~prohibited~~ otherwise blocked by any OFAC sanctions ~~program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national,~~ program or the ~~government, including any political subdivision, agency, or instrumentality thereof,~~ U.S. Department of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”)State. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ SDN List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that neither the Issuer nor any of its affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.16 If Subscriber is a foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) and is acquiring a substantial interest (as defined in ~~which~~ 31 C.F.R. § 800.244) in the Issuer, no national or subnational ~~governments~~ government of a single foreign state ~~have~~ has a substantial interest (as dedefined in 31 C.F.R. § 800.244) in the Subscriber. No Subscriber who is a foreign person (as defined in 31 C.F.R. § 800.224) will acquire control (as defin

Appears in 3 contracts

Sources: Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (Taboola.com Ltd.), Subscription Agreement (ION Acquisition Corp 1 Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ Pubco to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ Pubco and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ Pubco, as of the date hereof and as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver~~ deliver, and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer and Pubco, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or waiver under, or result in the creation or imposition of any lien, ~~charge~~ charge, or encumbrance upon any of the property or assets of Subscriber ~~or any of its subsidiaries~~ pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license~~ license, or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would~~ would, in each case, reasonably be expected to have a ~~material~~ materially adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”);~~ Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or ~~any of its subsidiaries in any material respect; or~~ (iii) result in any violation of any statute or any judgment, order, ~~rule~~ rule, or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective properties that would~~ properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber ~~Material Adverse Effect~~to enter into and timely perform its obligations under this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account or for beneficiaries’ portfolio under its management and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~iv) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to ~~the Company~~ Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of clauses (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that ~~the Securities will be subject to the foregoing transfer restrictions and,~~ as a result of ~~these~~ the transfer ~~restrictions~~restrictions described herein, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from ~~the Company~~Pubco. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the ~~Company~~ Issuer, Pubco, the Company, the Placement Agents (as defined below) or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants~~ covenants, and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s and Pubco’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer or Pubco concerning the Issuer or Pubco or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Pubco, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionShares. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered to Subscriber by any form of advertising or, to its knowledge, general ~~solicitation or general advertising~~ solicitation, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act,~~ Act or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, ~~legal~~ legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that ~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities~~Subscriber, alone, or together with any professional advisor(s), if any, has adequately analyzed and ~~fully~~ considered the risks of an investment in the ~~Securities and determined that the Securities are a suitable investment for Subscriber~~ Shares and that Subscriber is able ~~at this time and in the foreseeable future~~ to bear the economic risk of a total loss of Subscriber’s investment in ~~the Company~~Pubco. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable lawbank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 ~~On the date the Purchase Price will be required~~ If Subscriber is an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section ~~3.1~~4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~will~~ represents and warrants that (i) it has not relied on the Issuer or Pubco or any of their respective affiliates (the “Transaction Parties”) as the Plan’s fiduciary with respect to its decision to acquire and hold the Shares (and acknowledges that the Transaction Parties have ~~sufficient immediately available funds~~ not acted as the Plan’s fiduciary with respect to ~~pay~~ such decision), and (ii) it has not relied on any investment advice from the ~~Purchase Price pursuant~~ Transaction Parties with respect to ~~Section 3.1~~any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, ~~holding~~ holding, or disposing of equity securities of ~~the Company~~ Pubco (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18~~ 2.1.16 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales, (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement and (c) nothing herein shall independently apply to any Class A Ordinary Shares (i) acquired by Subscriber prior to the date hereof or (ii) acquired by the Subscriber after the date hereof other than pursuant to this Subscription Agreement; provided that the foregoing is not intended to, and shall not, modify any restrictions or obligations relating to such shares which exist independently of this Subscription Agreement. 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a

Appears in 3 contracts

Sources: Subscription Agreement (KORE Group Holdings, Inc.), Subscription Agreement (KORE Group Holdings, Inc.), Subscription Agreement (Cerberus Telecom Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933 (as amended, the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber acknowledges that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares, and (ii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agent or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares. 2.1.15 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.16 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price ~~will~~ would be required to be funded to the Issuer pursuant to Section ~~3.1~~3.1 will have, ~~Subscriber will have~~ sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. ~~2.1.15~~ 2.1.18 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deor

Appears in 3 contracts

Sources: Subscription Agreement (Collective Growth Corp), Subscription Agreement (Collective Growth Corp), Put Option Agreement (Collective Growth Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the SPAC and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the SPAC, as of the date hereof and as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Subscribed Shares shall contain a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the SPAC or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer and the SPAC contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, Tempo, the ~~“Disclosure Documents”): (i)~~ SPAC and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that~~ represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the ~~information contained in~~ Transactions, the ~~Disclosure Documents is subject to change~~Subscribed Shares and the business, condition (financial or otherwise), management, operations, properties and prospects of the Issuer, Tempo, and ~~that any changes to~~ the ~~information contained in the Disclosure Documents~~SPAC, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. 2.1.9 Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Tempo, the SPAC or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, the SPAC or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer, the SPAC or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Subscribed Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any applicable state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents Code or an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (~~is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (~~iii) or (d)(3) is applicable.~~ each, a “Plan”), Subscriber ~~hereby agrees~~ represents and warrants that ~~it shall notify~~ none of the ~~Company promptly in writing in~~ Issuer, the ~~event a Disqualification Event becomes applicable to Subscriber or~~ SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its ~~Rule 506(d) Related Parties~~decision to acquire and hold the Subscribed Shares, ~~except~~and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, ~~if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under transfer the ~~Securities Act~~Subscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.15 Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interes

Appears in 3 contracts

Sources: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Foley Trasimene Acquisition Corp.), Subscription Agreement (Fidelity National Financial, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the SPAC and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the SPAC, as of the date hereof and as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Subscribed Shares shall contain a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the SPAC or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer and the SPAC contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and the SPAC and their respective representatives concerning the Issuer or the SPAC or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, Paysafe, the ~~“Disclosure Documents”): (i)~~ SPAC and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that~~ represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Transactions, the ~~Disclosure Documents is subject to change~~Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Paysafe, and ~~that any changes to~~ the ~~information contained in the Disclosure Documents~~SPAC, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. 2.1.9 Subscriber acknowledges and agrees that (a) each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, Paysafe, the SPAC or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, the SPAC or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer, the SPAC or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Subscribed Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any applicable state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents Code or an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (~~is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (~~iii) or (d)(3) is applicable.~~ each, a “Plan”), Subscriber ~~hereby agrees~~ represents and warrants that ~~it shall notify~~ none of the ~~Company promptly in writing in~~ Issuer, the ~~event a Disqualification Event becomes applicable to Subscriber or~~ SPAC nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its ~~Rule 506(d) Related Parties~~decision to acquire and hold the Subscribed Shares, ~~except~~and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, ~~if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under transfer the ~~Securities Act~~Subscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.15 Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial in

Appears in 3 contracts

Sources: Subscription Agreement (Cannae Holdings, Inc.), Subscription Agreement (Foley Trasimene Acquisition II), Subscription Agreement (Fidelity National Financial, Inc.)

Appears in 3 contracts

Sources: Merger Agreement (Good Works Acquisition Corp.), Subscription Agreement (Good Works Acquisition Corp.), Subscription Agreement (Good Works Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company to issue~~ issuance of the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to ~~the Company~~ each of FEAC and ~~Holdings~~ Newco and acknowledges and agrees with each of FEAC and Newco, as of the ~~Company~~ date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of FEAC and Newco, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect; or (iii) result in any violation of any statute or any judgment~~is subject, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that which would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act), (b) is an Institutional Account as defined in FINRA Rule 4512(c) and (c) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that ~~it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any~~ the offering of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): Subscribed Shares meets (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”~~exemptions from filing under FINRA Rule 5123(b)(1)(A) ~~(File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement,~~ and (~~iii~~C) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (bJ) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ the ~~Securities Act, or any state securities laws. 2.1.10~~ institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subscribed Shares, including those set forth in the investor presentation provided by FEAC (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and ~~Subscriber~~ has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Newco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (ii) shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 10 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until at least one year from the filing by Newco of the “Form 10 information” after the Closing Date and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and ~~acknowledges~~ agrees that ~~it (i) is~~ the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~sophisticated investor~~result, ~~experienced in investing in private equity transactions~~ Subscriber may not be able to readily resell the Subscribed Shares and ~~capable of evaluating investment risks independently, both in general and with regard~~ may be required to ~~all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in~~ bear the ~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in~~ financial ~~and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks~~ risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and ~~determined~~ such professional advice as it deems appropriate that the ~~Securities~~ Subscribed Shares are a suitable investment for ~~Subscriber~~ Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s ~~investment in the Company~~investment. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.6. Subscriber understands and agrees ~~that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as~~ that, pursuant to the ~~fairness of this investment. 2.1.13~~ Assumption, Subscriber ~~represents and warrants that Subscriber is not (i) a person or entity named on~~ will purchase the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, Subscribed Shares directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programsfrom Newco. Subscriber further ~~represents and warrants that~~acknowledges that there have been no representations, ~~to the extent required~~warranties, ~~it, directly~~ covenants or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable agreements made to Subscriber by FEAC, Newco, enGene, the Placement Agents or any of ~~its Rule 506(d~~their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, other than, in the case of FEAC and Newco only, those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber understands that certain financial information (whether historical or in the form of financial forecasts or projections) ~~Related Parties~~ of FEAC, Newco and enGene have been prepared and reviewed solely by FEAC, Newco, enGene and their respective officers, directors and employees, as applicable, and have not been reviewed by the Placement Agents or any outside party or, except for the financial statements as expressly set forth in the Registration Statement (as defined below), ~~except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii)~~ certified or ~~(iii)~~ audited by an independent third-party auditor or ~~(d)(3) is applicable~~audit firm. 2.1.7. Subscriber ~~hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties~~does not have, ~~except, if applicable, for a Disqualification Event~~ as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of~~ date hereof, and during the ~~Company~~ 30-day period immediately prior to the date ~~hereof~~hereof such Subscriber has not, and during the period beginning as of the date hereof until the Closing Date or the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any “put equivalent position” as such term is ~~not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of~~ defined in Rule 16a-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or short sale positions with respect to the securities of FEAC. 2.1.8. If Subscriber is or is acting on behalf of (i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a plan, an individual retirement account or ~~any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities~~ other arrangement that is subject to Section 4975 of the ~~Company~~ Internal Revenue Code of 1986, as amended (~~within~~ the ~~meaning of Rule 13d-5(b)(1~~“Code”), (iii) ~~under the Exchange Act). 2.1.18 No foreign person~~ an employee benefit plan (such as a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) of ERISA), a church plan (as defined in ~~which~~ Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~national~~ Code (collectively, “Similar Laws”) or ~~subnational governments~~ (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.9. If Subscriber is or is acting on behalf of a ~~single foreign state~~ Plan, Subscriber represents and warrants that none of FEAC, Newco, enGene or any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. 2.1.10. Subscriber acknowledges that no disclosure or offering document has been prepared or reviewed by SVB Securities LLC and UBS Securities LLC (collectively, in their capacity as placement agents, the “Placement Agents”) or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing in connection with the offer and sale of the Subscribed Shares. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of FEAC and Newco contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including the Placement Agents), other than FEAC, Newco, enGene and their respective representatives concerning FEAC, Newco, enGene or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that ▇▇▇▇▇▇▇▇▇▇ has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to FEAC, Newco, enGene, and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription and the Transactions, have had the full opportunity to ask such questions, including on the financial information, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of FEAC, Newco and enGene including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and of FEAC, Newco and enGene. 2.1.11. Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a ~~substantial interest~~ fiduciary for Subscriber, FEAC, Newco, enGene or any other person or entity in connection with the Transactions, (~~as de~~b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription and the Transactions, in each case, to Subscriber and such advice or recommendation is not necessary or desired (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription and the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning, FEAC, Newco, enGene, the Subscription or the Transactions, (d) the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agents or their respective affiliates, shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses

Appears in 3 contracts

Sources: Subscription Agreement (Forbion Growth Sponsor FEAC I B.V.), Subscription Agreement (Forbion European Acquisition Corp.), Business Combination Agreement (Forbion European Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agents (as defined below) and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agents as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into or timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ Governmental Authority, domestic or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI hereto, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI hereto)~~. If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, covenants ~~and~~ or agreements made to Subscriber by Deutsche Bank Securities Inc. (“Deutsche Bank”) or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇” and together with Deutsche Bank, the ~~Company~~ “Placement Agents”), the Issuer, Rigetti, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement~~. 2.1.7~~ . Subscriber ~~represents~~ understands and ~~warrants~~ acknowledges that (i) it Deutsche Bank or its affiliate is also acting as a financial advisor to Rigetti in relation to the Acquisition and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is also acting as capital markets advisor to the Issuer. Subscriber understands and acknowledges (i) that Deutsche Bank’s role as financial advisor to Rigetti and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ role as capital markets advisor to the Issuer, in each case, may give rise to potential conflicts of interest or the appearance thereof. 2.1.7. Subscriber’s acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements herein. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to, and has had an adequate opportunity to review, such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Rigetti and the Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges ~~that~~ that, as the Subscriber deems necessary, it has ~~had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”):~~ reviewed (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed~~ Issuer’s filings with the Securities and Exchange Commission (the “Commission”~~) (File Nos. 333-261822) (the “Prospectus”~~), (ii) ~~each SEC Document (as defined below) through~~ a presentation with respect to Rigetti provided to Subscriber by the ~~date of this Subscription Agreement~~Issuer, ~~and~~ (iii) summary key risks related to the ~~Transaction Agreement~~Issuer, ~~a copy of which will be filed~~ Rigetti and the Acquisition provided to Subscriber by the ~~Company with~~ Issuer and (iv) the ~~Commission~~financial statements of Rigetti as of January 31, 2020 and 2021 and the years then ended. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) neither of the Placement Agents nor any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation, express or implied, as to the Issuer, Rigetti, their credit quality, the quality or value of the Shares, the Acquisition or the other transactions contemplated hereby, or the Subscriber’s purchase of the Shares. In connection with the issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Issuer, Rigetti or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. 2.1.9. The Subscriber acknowledges that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Subscriber has not relied on any investigation that the Placement Agents, any of their respective affiliates or any person acting on their behalf have conducted with respect to the Shares, Rigetti or the Issuer. The Subscriber further acknowledges that ~~the~~ it has not relied on any information contained in any research reports prepared by the ~~Disclosure Documents is subject to change, and that~~ Placement Agents or any ~~changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms~~ of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentationtheir respective affiliates. ~~2.1.9~~ 2.1.10. Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or Rigetti or a representative of the ~~Company or Holdings~~Issuer, ~~or (b) directly from~~ including the ~~Company as a result of~~ Placement Agents. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~Rigetti or a representative of the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and acknowledges that it~~ (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities. 2.1.11~~ Shares. Subscriber ~~represents~~ understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.12. Alone, or together with any professional advisor(s), Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.14. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ; provided that Subscriber is permitted to do so under applicable ~~law~~laws. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, itSubscriber, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedesi

Appears in 2 contracts

Sources: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.), Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Note to ~~Subscriber~~Subscriber at the Closing, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the Company ~~and Holdings~~ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement (including the transactions contemplated herein) has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) general principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations~~ The execution and ~~warranties as set forth in Section 2.2 hereof, the execution,~~ delivery ~~and performance by Subscriber~~ of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Note and the consummation of the other transactions contemplated herein (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber and (iii) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Note and the Shares. 2.1.4 The execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Note (including the underlying Shares) and the consummation of the other transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~Subscriber or any of its subsidiaries~~ Subscriber, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole~~ability of, or ~~materially and adversely affect~~ prevent, impair, delay or impede the legal authority ~~or ability of~~ of, Subscriber to ~~comply~~ enter into and timely perform in ~~all~~ any material ~~respects with the terms of~~ respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or any of its subsidiaries in any material respect;~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.5 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by Subscriber of this Subscription Agreement. 2.1.6 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is ~~acquiring all~~ aware that this offering of the ~~Securities~~ Note and the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iv) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (v) acquiring the Note and the Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Note and the Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the ~~acknowledgements~~acknowledgments, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~vi) is not acquiring the ~~Securities for investment purposes only~~ Note and ~~not~~ the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto, where such information provided shall be accurate and complete in all material respects). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Note and the Shares. ~~2.1.5~~ 2.1.7 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Note and the Shares. 2.1.8 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Note and the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Note and the Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction, and as a result, the sale of the Note and the Shares to Subscriber is being made pursuant to an exemption from registration under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Note and the Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Note and the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Note and the Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Note and the Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Note and the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Note (including the underlying Shares). By making the representations herein, Subscriber does not agree to hold any of the Note (including the underlying Shares) for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Note and the Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the Company, ▇▇▇▇▇ & Company Capital Markets, a division of J.V.B. Financial Group, LLC (the “Placement Agent”), or any of ~~its officers~~ their respective affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, together with the Placement Agent, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Company expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by the Company expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Note and the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Note or the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Note or the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan ~~Subscriber~~ Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Note and the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable ~~similar law~~Similar Law (as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Securities~~Note and the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in~~ foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by any Non-Party Affiliate concerning the Company, the Note or the Shares, the offer and sale of the Note and the Shares or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Note and the Shares, including with respect to the Company, the offer and sale of the Note and the Shares or the other transactions contemplated by the Subscription Agreement and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Note and the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had ~~the~~ an opportunity to review the documents ~~provided~~ made available to Subscriber by the Company, ~~including~~ (~~collectively,~~ the “Disclosure ~~Documents~~Package”~~): (i)~~ ), provided by the ~~final prospectus of the Company, dated as of January 14, 2022~~ Company and ~~filed with~~ any such documents available on the Securities and Exchange ~~Commission~~ Commission’s (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed ~~necessary~~ necessary, without reliance on the Placement Agent, to make an investment decision with respect to the ~~Securities~~Note and the Shares and conducted and completed their own independent diligence concerning the Company, the Note, the Shares, the offer and sale of the Note and the Shares and the other transactions contemplated by this Subscription Agreement. ~~The~~ Based upon such information as Subscriber ~~further~~ has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Note and the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Company expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Company, the Note or the Shares, the offer and sale of the Note and the Shares or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that none of the ~~information contained in~~ Placement Agent or any of their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Disclosure Documents is subject to change~~foregoing (collectively, ~~and that~~ “Representatives”) have made any ~~changes~~ independent investigation with respect to the Company, the Note or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Company or any of its subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained ~~in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction~~herein, shall ~~in no way~~ modify, limit or otherwise affect Subscriber’s ~~obligation~~ right to ~~purchase~~ rely on the ~~Securities hereunder~~Company’s representations, ~~except as otherwise provided herein~~warranties, covenants and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections~~ agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the ~~Investor Presentation~~Placement Agent or any of their respective affiliates with respect to its decision to invest in the Note and the Shares, including information related to the Company, the Note, the Shares and the offer and sale of the Note and the Shares and (ii) none of the Placement Agent or any of their affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Note and the Shares. ~~2.1.9~~ 2.1.14 Subscriber became aware of this offering of the ~~Securities~~ Note and the Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, on the ~~Company~~one hand, ~~Holdings, or a representative of~~ and the Company or ~~Holdings~~its representatives (including the Placement Agent), ~~or (b) directly from~~ on the ~~Company as a result of a pre-existing, substantial relationship with the Company,~~ other hand. The Note and the ~~Securities~~ Shares were offered to Subscriber solely by such direct ~~contact between Subscriber and either the Company or Holdings~~contact. Subscriber did not become aware of this offering of the ~~Securities~~Note and the Shares, nor were the ~~Securities~~ Note or the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents~~ Note and ~~warrants that~~ the ~~Securities~~ Shares (i) were not offered to it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered to it in a manner involving a public offering under, or or, to its knowledge, in a distribution in violation of, the Securities ~~Act,~~ Act or any ~~state~~ other applicable securities laws. ~~2.1.10~~ 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities. Subscriber has such knowledge~~ Note and ~~experience in financial and business matters as to be capable of evaluating~~ the ~~merits and risks of an investment~~ Shares, including those set forth in the ~~Securities,~~ Disclosure Package and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties Company SEC Documents (as defined below)~~, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable~~. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~direct beneficial owner of Subscriber’s securities~~ sophisticated institutional investor, is able to fend for ~~purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber~~ itself in ~~connection with this Subscription Agreement or~~ the transactions contemplated ~~hereby in~~ herein, has such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deknowl

Appears in 2 contracts

Sources: Subscription Agreement (Captivision Inc.), Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings as follows~~Issuer: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or~~ ), an institutional “accredited investor” (within the meaning of subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) of Rule ~~501(a)~~ 501 under the Securities Act)) or a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act of 1940, ~~in each case~~as amended, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a nominee, fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer,” an institutional “accredited investor” or a “qualified purchaser” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands and acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(B), (C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) pursuant to offers and sales that occur solely outside the United States within the meaning of and in compliance with Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (ii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such ~~effect~~effect (a “Restricted Legend”). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon an independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants of the Company contained~~ agreements in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to the Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges that Barclays Capital Inc., ▇▇▇▇▇▇▇▇▇ LLC, BTIG, LLC and ▇▇▇▇▇▇▇ & Company, LLC (the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and ~~that~~ any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder, except as otherwise ~~provided herein, and that,~~ set forth in ~~purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~this Subscription Agreement. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agents or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities (i)~~ Shares were not offered by any form of advertising or, to such Subscriber's knowledge, general solicitation ~~or general advertising and~~ (~~ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ within the meaning of Regulation D under the Securities Act~~, or any state securities laws~~). 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares, including those set forth in the forms, reports, registration statements and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares and (B) the purchase and sale of the Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”~~) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”~~), or ~~a person~~ any other sanctions-related list maintained and enforced by the U.S. government, including but not limited to the U.S. Department of State, U.S. Department of Commerce, or ~~entity prohibited by any OFAC sanctions program~~U.S. Department of Treasury (collectively, “Sanctions Lists”), (ii) owned or controlled by, or acting on behalf of, a person, that is named on ~~an OFAC~~ a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or entity providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with U.S. sanctions programs, including for the screening of its investors against the ~~OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Sanctions Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents Code or an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (~~is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15collectively, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange ActSimilar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any ~~successor provision~~such plan, account or arrangement (each, a “Plan”) ~~acting for~~ subject to the ~~purpose~~ fiduciary or prohibited transaction provisions of ~~acquiring, holding~~ ERISA or ~~disposing of equity securities~~ section 4975 of the ~~Company~~ Code, Subscriber represents and warrants that neither Issuer, nor any of its respective affiliates (~~within~~ the ~~meaning of Rule 13d-5(b)(1~~“Transaction Parties”) ~~under~~ has acted as the ~~Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~Plan’s fiduciary, or

Appears in 2 contracts

Sources: Subscription Agreement (LGL Systems Acquisition Corp.), Merger Agreement (LGL Systems Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber ~~understands~~ is (i) an institutional account as defined in FINRA Rule 4512(c), (ii) a sophisticated investor, experienced in investing in private equity transactions and ~~agrees~~ capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understand that the ~~Securities~~ Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A ~~promulgated~~ under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. For purposes of this Subscription Agreement, “Transfer” shall mean any direct or indirect transfer, redemption, disposition or monetization in any manner whatsoever, including, without limitation, through any derivative transactions. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyShares, including ~~(collectively,~~ with respect to the ~~“Disclosure Documents”): (i)~~ Issuer and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain and review such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change~~Shares, and ~~that any changes~~ Subscriber has made its own assessment and satisfied itself concerning the relevant tax and other economic considerations relevant to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentationits Subscription. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representatives. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representatives. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is, or is acting on behalf of, (i) an “employee benefit plan” within the ~~date~~ meaning of Section 3(3) of the ~~Purchase Price~~ Employee Retirement Security Act of 1974, as amended (“ERISA”) that is subject to Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Internal Revenue Code of 1985, as amended (the “Code”) that is subject to section 4975 of the Code, (iii) an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) (collectively, “Non-ERISA Plans”) or other plan that is subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section 4975 of the Code (collectively, “Similar Laws”), or (iv) an entity whose underlying assets are considered to include “plan assets” of any of the foregoing described in clauses (i), (ii) and (iii) (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that (x) neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to the Subscriber’s decision to acquire or hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares and (y) the acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code, or a similar violation of any applicable Similar Law. Additionally, if the Subscriber is, or is acting on behalf of, Non-ERISA Plans, the Subscriber further represents and warrants that (a) the Subscriber’s decision to acquire or hold the Shares: (i) does not violate and is not otherwise inconsistent with the terms of any legal document constituting or governing the employee benefit plan; (ii) has been duly authorized and approved by all necessary parties; and (iii) is in compliance with all applicable laws, rules and regulations and (b) neither the Transaction Parties nor any person who manages the assets of the Transaction Parties will be ~~required~~ subject to ~~be funded pursuant~~ any laws, rules or regulations applicable to ~~Section 3.1,~~ such Subscriber ~~will have sufficient immediately available funds~~ solely as a result of Subscriber’s decision to ~~pay~~ acquire or hold the ~~Purchase Price pursuant to Section 3.1~~Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Issuer’s Class A Ordinary Shares prior to the date hereof, Subscriber is not currently (and at all times through the Subscription Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Issuer as a result of the purchase and sale of Shares hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Issuer from and after the Subscription Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions

Appears in 2 contracts

Sources: Business Combination Agreement (Cartesian Growth Corp), Subscription Agreement (Cartesian Growth Corp)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ PubCo and MBSC to issue the Acquired Securities to Subscriber, Subscriber hereby represents and warrants to ~~the Company~~ PubCo and ~~Holdings~~ MBSC and acknowledges and agrees with ~~the Company~~ PubCo and ~~Holdings~~ MBSC as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ib) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the The execution, delivery and performance by Subscriber of this Subscription Agreement ~~and~~ are within the ~~consummation~~ powers of ~~the transactions contemplated herein do not~~ Subscriber, have been duly authorized and will not (i) ~~conflict with~~ constitute or result in a breach or ~~violation~~ default under or conflict with (i) any order, ruling or regulation of any court or other tribunal or of ~~the terms~~ any governmental commission or ~~provisions of~~agency, or ~~constitute a default under, or result in the creation or imposition of~~ any ~~lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license~~ agreement or other ~~agreement or instrument~~ undertaking, to which Subscriber is a party or by which Subscriber is ~~bound or to which any of the property or assets of Subscriber is subject~~bound, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); ) or (ii) ~~if Subscriber is not an individual, result in~~ violate any ~~violation of the~~ provisions of ~~the~~ Subscriber’s organizational ~~documents~~ documents, including, without limitation, its articles of ~~Subscriber~~ incorporation or ~~any~~ formation papers, bylaws, indenture of ~~its subsidiaries in any material respect;~~ trust or ~~(iii) result in any violation of any statute~~ partnership or ~~any judgment~~operating agreement, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably as may be ~~expected to have a Subscriber Material Adverse Effect~~applicable. ~~2.1.4 The~~ (c) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9) or (12) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the Acquired Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Acquired Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the ~~acknowledgements~~acknowledgments, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Acquired Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Acquired Securities. Subscriber is an “institutional account” as defined in FINRA Rule 4512(c) or an entity that meets an exemption from filing under FINRA Rule 5123(b)(1)(A), (B), (C), (D), (E) or (J). ~~2.1.5~~ (d) If the Subscriber ~~understands~~ is a resident in Canada, or otherwise subject to applicable securities laws of a Canadian jurisdiction, then it is an “accredited investor” as such term is defined in National Instrument 45-106 – Prospectus Exemptions or section 73.3(1) of the Securities Act (Ontario), as applicable, and has completed, executed and delivered to PubCo and MBSC the Canadian Accredited Investor Representation Letter in the form attached hereto as Schedule II (including Exhibit A to Schedule II and all appendices thereto) indicating that the Subscriber fits within one of the prospectus exemption categories under applicable provincial securities laws as set forth therein, and confirms the truth and accuracy of all representations, warranties and covenants made in such certificate as of the date of this Agreement and as of the Closing Date. (e) Subscriber acknowledges and agrees that the Acquired Securities (including any Underlying Shares) are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Securities (and any Underlying Shares) have not been registered under the Securities ~~Act~~Act or qualified for distribution to the public under applicable securities laws in Canada, and that any certificates representing the Acquired Shares (and any Underlying Shares) shall contain the legends set forth in Section 2.1. Subscriber ~~understands~~ acknowledges and agrees that the Acquired Securities (and any Underlying Shares) may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act ~~with respect to the Securities~~ or until PubCo becomes a reporting issuer under applicable securities legislation in Canada and certain other conditions are satisfied, except (i) to ~~the Company~~ PubCo or a subsidiary thereof, (ii) in an offshore transaction within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 under the Securities Act, provided that all of the applicable conditions thereof have been met, or (iiiv) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available and that any book entries representing~~ and, in some cases, one of the ~~Securities shall contain a restrictive legend to such effect~~limited exemptions from the prospectus requirements under applicable securities laws in Canada. Subscriber ~~understands~~ acknowledges and agrees that the Acquired Securities ~~will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands~~ (and ~~agrees that the Securities~~ any Underlying Shares) will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Securities (and any Underlying Shares) and may be required to bear the financial risk of an investment in the Acquired Securities (and any Underlying Shares) for an indefinite period of time. Subscriber ~~understands~~ acknowledges that the Acquired Securities (and any Underlying Shares) will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act until at least one year from the filing of “Form 10 information” with the SEC after the Closing Date. The Subscriber acknowledges that PubCo is not now a “reporting issuer” under the securities laws of any jurisdiction of Canada, that PubCo has no obligation to become a reporting issuer in Canada and that there is no guarantee that it will become a reporting issuer in Canada in the future; and the Subscriber further acknowledges that as a result of PubCo not being a reporting issuer in Canada, the Common Shares will be subject to an indefinite restriction on resale (i.e. “hold period”) in Canada and the hold period under applicable securities legislation in Canada will not commence until PubCo becomes a “reporting issuer” in a jurisdiction of Canada, which it has no obligation to become. Subscriber acknowledges and agrees that it has been advised to consult ~~legal, tax~~ Canadian and ~~accounting~~ U.S. legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Acquired Securities (and any Underlying Shares). The Subscriber acknowledges that it has received written notice that for the purposes of applicable securities laws in Canada, the Acquired Securities (and any Underlying Shares) will be subject to the following legend: UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS FOUR MONTHS AND ONE DAY AFTER THE LATER OF (I) THE CLOSING DATE, AND (II) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY CANADIAN PROVINCE OR TERRITORY. ~~2.1.6~~ (f) Subscriber ~~understands~~ acknowledges and agrees that Subscriber is purchasing the Acquired Securities (including any Underlying Shares) directly from ~~the Company~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by ~~the Company~~ PubCo, MBSC, or their respective affiliates or any of ~~its officers~~ their respective officers, directors, partners, members, managers or ~~directors~~employees, expressly or by implication, other than those representations, warranties, covenants and agreements of the PubCo and MBSC included ~~in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth~~ in this Subscription Agreement. ~~2.1.7~~ (g) If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or ~~(ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any ~~applicable~~ such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that (i) neither PubCo nor MBSC, nor any of its respective affiliates (the “Transactions Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Acquired Securities, and none of the Transactions Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Acquired Securities and (ii) none of the acquisition, holding and/or transfer or disposition of the Acquired Securities will result in a nonexempt prohibited transaction under ERISA or Section 4975 of the Code or any similar ~~law~~law or regulation. ~~2.1.8~~ (h) In making its decision to subscribe for and purchase the Acquired Securities, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and has not relied on any statements or other information provided by PubCo, MBSC or the ~~representations~~Company, ~~warranties~~any of their respective affiliates or any of their respective control persons, ~~and covenants of~~ officers, directors, partners, members, managers or employees concerning PubCo, MBSC, the ~~Company contained in this Subscription Agreement~~Company, their respective affiliates, the Transactions or the Acquired Securities. Subscriber acknowledges and agrees that Subscriber has ~~received~~ had access to, and ~~has had~~ an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant~~ Acquired Securities, including with respect to ~~Subscriber’s investment in the Securities. Without limiting the generality of the foregoing~~PubCo, ~~Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by~~ MBSC, the Company, ~~including (collectively,~~ and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber ~~represents~~ and ~~agrees that Subscriber and its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Acquired Securities. ~~The~~ Subscriber is not relying upon, and has not relied upon, any statement, representation or warranty with respect to its acquisition of the Acquired Securities made by any person, including, without limitation, PubCo, MBSC or the Company, except for the statements, representations and warranties of PubCo and MBSC contained in this Subscription Agreement. Subscriber further acknowledges and agrees that the information ~~contained~~ provided to Subscriber (other than, for the avoidance of doubt, the information expressly set forth in the ~~Disclosure Documents~~ representations and warranties made by PubCo and MBSC herein) is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated ~~information or changes in terms of the Transaction~~information, shall in no way affect Subscriber’s ~~obligation~~ obligations under this Subscription Agreement (including, without limitation, to purchase the ~~Securities hereunder~~Acquired Securities); provided however, ~~except as otherwise provided herein~~that this Section 3.3(h) shall in no way limit the applicability of the representations, warranties, statements or provisions of any existing agreement between Subscriber or any of its affiliates and ~~that~~the Company or any of its affiliates, ~~in purchasing~~ including with respect to the ~~Securities,~~ Greenfire Warrants or any commercial relationship between Subscriber ~~is not relying upon~~ or any ~~projections contained in~~ of its affiliates and the ~~Investor Presentation~~Company or any of its affiliates. ~~2.1.9~~ (i) Subscriber became aware of this offering of the Acquired Securities solely ~~(a)~~ by means of direct contact from ~~the Company, Holdings,~~ PubCo or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company~~MBSC, and the Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either the Company~~ PubCo or ~~Holdings~~MBSC. Subscriber did not become aware of this offering of the Acquired Securities, nor were the Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Company~~ PubCo represents and warrants that the Acquired Securities (including any Underlying Shares) (i) were not offered to Subscriber by any form of general solicitation or general advertising and (ii) to PubCo’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ (j) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters~~ shall be responsible for any of Subscriber’s tax liabilities that may arise as ~~to be capable of evaluating the merits and risks~~ a result of the ~~investment in~~ transactions contemplated by this Subscription Agreement (except for any tax liabilities to Subscriber arising by virtue of a breach of this Subscription Agreement by PubCo or MBSC), and that neither PubCo nor MBSC has provided any tax advice or any other representation or guarantee regarding the ~~Securities~~tax consequences of the transactions contemplated by the Subscription Agreement. (k) Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the Acquired Securities and determined that the Acquired Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~the Company~~PubCo. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ (l) Subscriber ~~understands~~ acknowledges and agrees that no ~~federal~~ federal, provincial, territorial or state agency has passed upon or endorsed the merits of the offering of the Acquired Securities or made any findings or determination as to the fairness of this investment. ~~2.1.13~~ (m) Neither the due diligence investigation conducted by Subscriber ~~represents~~ in connection with making its decision to acquire the Acquired Securities nor any representations and ~~warrants that~~ warranties made by Subscriber herein shall modify, amend or affect Subscriber’s right to rely on the truth, accuracy and completeness of PubCo’s representations and warranties contained herein. (n) Neither Subscriber nor, to the knowledge of Subscriber, any of its officers, directors, (or managers of U.S. limited liability companies, or its equivalent thereof under Canadian corporate laws), managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by ~~the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)~~ OFAC or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Russia, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 2 contracts

Sources: Business Combination Agreement (M3-Brigade Acquisition III Corp.), Subscription Agreement (M3-Brigade Acquisition III Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Closing Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Securities. Subscriber understands and acknowledges that the purchase of the Securities pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities ~~except (i)~~ or an opinion of counsel satisfactory to the Company ~~or a subsidiary thereof, or (ii) pursuant to another~~ that such registration statement is not required and an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the Securities shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber ~~further~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by ▇▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (the “Placement Agent”) and that the Placement Agent and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Securities or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the ~~Disclosure Documents~~ Securities, including information related to the Company, the Securities and the offer and sale of the Securities. The information provided to the Subscriber is preliminary and subject to change, and ~~that~~ any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Closing Securities hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the Securities solely ~~(a)~~ by means of direct contact from the ~~Company, Holdings,~~ Placement Agent or ~~a representative of the Company or Holdings, or (b)~~ directly from the Company as a result of a pre-~~existing~~exiting, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Securities hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has adequately analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Closing Securities were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 2 contracts

Sources: Subscription Agreement (Nuvve Holding Corp.), Subscription Agreement (Newborn Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares and the Warrants, if applicable, to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with~~ enter into, perform its obligations under or consummate the ~~terms of~~ transactions contemplated by this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) assuming each of the consents, authorizations and approvals referred to in Section 2.1.4 are obtained and each of the filings referred to in Section 2.1.4 are made and any applicable waiting periods referred to therein have expired, result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Except for (i) applicable filing, notification, waiting period or approval requirements under applicable Antitrust Laws (as defined below) (including the HSR Act (as defined below)), and (ii) solely to the extent Subscriber has elected to deliver the Second Step Investment Notice, the submission of a voluntary notice to CFIUS (as defined below) and receipt of CFIUS Approval (as defined below), no consents or approvals of, or notices to or filings, declarations or registrations with, any governmental authority of competent jurisdiction are necessary for the execution and delivery of this Subscription Agreement by Subscriber and the consummation by Subscriber of the Subscription, other than as would not reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.5 Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares and the Warrants, if applicable, only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares and the Warrants, as applicable, as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only~~ Shares and ~~not~~ the Warrants, if applicable, with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares or the Warrants. ~~2.1.5~~ 2.1.6 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares and the Warrants have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares or the Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares or the Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares or the Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares or the Warrants. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares and the Warrants, if applicable, directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 Subscriber represents and warrants that ~~(i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii)~~ its acquisition and holding of the ~~Securities~~ Shares and the Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Securities~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares and the ~~representations, warranties,~~ Warrants or the offer and ~~covenants~~ sale of the ~~Company contained in this Subscription Agreement~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has ~~received and~~ received, has had an adequate opportunity to ~~review,~~ review and has reviewed such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and the Warrants, including with respect to the Issuer, Study, Magnet and the Transactions, and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities. Without limiting~~ Shares and the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionWarrants. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that~~ Shares and the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationWarrants. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Shares and the Warrants solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares and the Warrants, nor were the ~~Securities~~ Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares and the Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. ~~2.1.11~~ 2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and the Warrants and determined that the ~~Securities~~ Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or the Warrants or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares or the Warrants. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber ~~represents~~ is not an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under~~ is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~Securities Act (~~Code or an employee benefit plan that is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity other plan that is ~~a direct beneficial owner~~ not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ~~Subscriber’s securities for purposes~~ ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of ~~Rule 506(d) under~~ any such plan, account or arrangement subject to the ~~Securities Act~~fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through ~~Closing~~ the First Step Investment Closing, if Subscriber has not made the Second Step Investment, and through the Second Step Investment Closing, if Subscriber has made the Second Step Investment, will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, or will have access to, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares and the Warrants. 2.1.18 ~~No foreign person~~ None of the information provided or to be provided in writing by or on behalf of Subscriber for inclusion in the Joint Proxy Statement or Joint Proxy Statement/Prospectus (each, as defined in ~~31 C.F.R. Part 800.224~~the Study Merger Agreement) ~~in which the national or subnational governments~~ will contain any untrue statement of a ~~single foreign~~ material fact or omit to state ~~have~~ any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. 2.1.19 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a ~~substantial interest (~~way as deto create any liability on the Issuer.

Appears in 2 contracts

Sources: Subscription Agreement (Naspers LTD), Subscription Agreement (Churchill Capital Corp II)

Appears in 2 contracts

Sources: Subscription Agreement (Ads-Tec Energy Public LTD Co), Subscription Agreement (European Sustainable Growth Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by ~~(i)~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and ~~(ii)~~ principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or ~~(iii)~~ result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber ~~(i)~~ is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), an Institutional Account as defined in FINRA Rule 4512(c) or a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, ~~(ii) is~~ acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect~~ Act, except to the ~~Securities except (i) to the Company~~ Issuer or a subsidiary thereof, to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or ~~(ii)~~ pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases ‎(i) and ‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively,~~ with respect to the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that the information contained in the Disclosure Documents~~ represents and warrants it is ~~subject to change~~relying exclusively on its own sources of information, investment analysis and ~~that any changes~~ due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Subscribed Shares and the ~~Disclosure Documents~~business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as degeneral

Appears in 2 contracts

Sources: Subscription Agreement (Biodesix Inc), Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4 ~~The~~ Subscriber (i) is (a) either (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities ~~Act)~~Act or (y) an Institutional Account as defined in FINRA Rule 4512(c) and (b) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for his, her or its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Nothing contained herein shall be deemed a representation or warranty by Subscriber to hold the ~~Subscriber is an entity, the~~ Subscribed Shares for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act until at least one (1) year from the Closing Date. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily ~~resell~~ offer, resell, transfer, pledge or otherwise dispose of the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by or on behalf of the ~~Company~~ Issuer, Jasper, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.8 In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied ~~solely~~ upon (i) independent investigation made by ~~Subscriber~~ Subscriber, (ii) the SEC Documents (as defined below) and (iii) the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by or on behalf of anyone (including Credit Suisse Securities (USA) LLC, Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Subscribed Shares, including with respect to the Issuer, Jasper and ~~made its own assessment~~ the Transactions, and Subscriber further acknowledges that such information is ~~satisfied concerning~~ subject to change, and that any changes to such information, including any changes based on updated information or changes in the ~~relevant tax and other economic considerations relevant to~~ terms of the Transactions, shall in no way affect the Subscriber’s ~~investment in~~ obligation to purchase the ~~Securities. Without limiting the generality of the foregoing~~Subscribed Shares hereunder, ~~Subscriber acknowledges that it has had the opportunity to review the documents~~ except as otherwise provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commissionherein. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Except as expressly set forth herein, Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and Jasper including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the ~~information contained~~ Placement Agents in ~~the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms~~ connection with Subscriber’s due diligence review of the ~~Transaction, shall in no way affect Subscriber’s obligation to purchase~~ offering of the ~~Securities hereunder, except as otherwise provided herein,~~ Subscribed Shares and ~~that, in purchasing~~ the ~~Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~Issuer. 2.1.9 Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber, (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, Jasper or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. Subscriber further acknowledges that Credit Suisse Securities (USA) LLC is acting as capital markets advisor to Jasper in connection with the Transactions. Issuer and Jasper are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~Jasper or one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) ~~owned~~ owned, directly or indirectly, or controlled by, or acting on behalf of, ~~a person,~~ one or more persons that is are named on an the OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by in the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.13 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently ~~(and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deof

Appears in 2 contracts

Sources: Business Combination Agreement (Amplitude Healthcare Acquisition Corp), Subscription Agreement (Amplitude Healthcare Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is a party or by which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or~~ materially ~~and adversely~~ affect the ability or legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or or, if Subscriber is not an individual, any of its subsidiaries or any of their respective properties that would reasonably be expected to ~~have a~~ materially affect the ability or legal authority of Subscriber ~~Material Adverse Effect~~to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act or~~ Act. Subscriber has completed Schedule A following the ~~laws of any jurisdiction (~~signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~set forth on Schedule A)~~contained therein is accurate and complete. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates or book-entry notations representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Company, Sabre or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Company expressly set forth in this Subscription Agreement. 2.1.7 As of the date of this Subscription Agreement, Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyShares, including ~~(collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed~~ with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by respect to the Company ~~with~~ and the ~~Commission~~Transaction. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber ~~became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings,~~ and/or its investment manager or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ adviser has a pre-~~existing, substantial~~ existing substantive relationship with the Company, ~~and~~ Sabre and/or H2C Securities Inc. (the ~~Securities~~ “Placement Agent”). The Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company or Holdings. Subscriber did~~ Company, Sabre and/or the Placement Agent, and the Shares were not ~~become aware of this offering of the Securities, nor were the Securities~~ offered to ~~Subscriber,~~ Subscriber by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii)~~ Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Subscriber acknowledges that (i) it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, the Placement Agent or Sabre), except for the representations and warranties of the Company expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Company, (ii) the Placement Agent and each of its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Shares, or the accuracy, completeness, or adequacy of any information supplied to Subscriber by the Company, and (iii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and~~ acknowledges that ~~it (i) is a sophisticated investor, experienced~~ the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in ~~investing in private equity transactions~~ connection with the issuance and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a ~~person,~~ person that is named on an the OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to use reasonable best efforts to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 ~~On the date the Purchase Price will be required~~ If Subscriber is, or is acting (directly or indirectly) on behalf of, an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, individual retirement account or other arrangement that is subject to Section ~~3.1~~4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~will~~ represents and warrants that (i) none of the Company, Sabre nor any of their respective employees, representatives or affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares; (ii) the Subscription complies with the terms of the Plan’s governing instruments and all applicable requirements of ERISA, the Code and all applicable Similar Laws; and (iii) to the extent applicable, the decision to invest in the Shares has been made at the recommendation or direction of an “independent fiduciary” (“Independent Fiduciary”) within the meaning of U.S. Code of Federal Regulations 29 C.F.R. Section 2510.3 21(c), as amended from time to time (the “Fiduciary Rule”) who is (A) independent of the Transaction Parties; (B) capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies (within the meaning of the Fiduciary Rule); (C) a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to Subscriber’s investment in the Shares and is responsible for exercising independent judgment in evaluating the investment in the Shares; and (D) aware of and acknowledges that (I) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with Subscriber’s investment in the Shares, and (II) the Transaction Parties have ~~sufficient immediately available funds~~ a financial interest in Subscriber’s investment in the Shares on account of the fees and other remuneration they expect to ~~pay~~ receive in connection with the ~~Purchase Price pursuant to Section 3.1~~Subscription and the Transaction. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) ~~filed by such Subscriber with the Commission~~ with respect to the beneficial ownership of the ~~securities of the Company prior~~ Company’s Class A common stock at any time or from time to ~~the date hereof~~time, Subscriber is not ~~currently (and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3~~) or Section 14(d)(2~~) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) holding or acquiring more than five percent (5%) of the Company’s outstanding Class A common stock, including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act); provided that Subscriber makes no representation with respect to whether Subscriber, together solely with its affiliates, would constitute a “group” for the purposes of this Section 2.1.15. ~~2.1.18 No foreign person (as defined~~ 2.1.16 At the time of funding the Applicable Purchase Price prior to the Closing, Subscriber will have sufficient funds to pay the Applicable Purchase Price pursuant to Section 3.1. 2.1.17 To the extent Subscriber is one of the covered persons identified in ~~31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~Rule 506(d)(1), S

Appears in 2 contracts

Sources: Subscription Agreement (Healthcare Merger Corp.), Subscription Agreement (Healthcare Merger Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Subscribed Shares and to ~~Subscriber~~induce the Sponsor to transfer the Transferred Sponsor Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the Sponsor, as applicable, and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the Sponsor, as applicable, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any law, statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares and receipt of transfer of the Transferred Sponsor Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB who is investing in the Subscribed Shares, (ii) is acquiring ~~all~~ the Subscribed Shares and receiving transfer of the ~~Securities~~ Transferred Sponsor Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares or receiving transfer of the Transferred Sponsor Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make ~~the~~ the- acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares or Transferred Sponsor Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and receipt of transfer of the Transferred Sponsor Shares and is not acquiring the Subscribed Shares or receiving transfer of the Transferred Sponsor Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Accordingly, Subscriber understands that the ~~Subscriber is an entity,~~ offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares or receiving transfer of the Transferred Sponsor Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered and the Transferred Sponsor Shares are being transferred in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to the Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares and the Transferred Sponsor Shares have not been registered under the Securities Act or any other applicable securities laws, and that the Subscribed Shares and Transferred Sponsor Shares are being offered for resale in a transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from or in a transaction not subject to the registration requirements of the Securities ~~Act that is available~~ Act, and in each case, in accordance with any other applicable securities laws, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares and Transferred Sponsor Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares and Transferred Sponsor Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares and Transferred Sponsor Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares and Transferred Sponsor Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer and receiving transfer of the Transferred Sponsor Shares from the Sponsor. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by as applicable, the ~~Company~~ Issuer, the Company, or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares or Transferred Sponsor Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any other applicable federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares and receive transfer of the Transferred Sponsor Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company contained~~ Issuer expressly set forth in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber acknowledges that it is not relying upon, and has not relied on any representations, warranties, statements or other information provided by anyone (including without limitation, J.V.B. Financial Group, LLC, acting through its ▇▇▇▇▇ & Company Capital Markets division, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC (collectively, in their capacity as placement agents or capital markets advisors, as applicable, the “Placement Agents”) or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing). Subscriber acknowledges and agrees that Subscriber has ~~received~~ received, had access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Subscribed Shares and ~~made its own assessment~~ Transferred Sponsor Shares, including with respect to the Issuer, the Company and the Transactions, and that such information is ~~satisfied concerning~~ preliminary and subject to change and that none of the ~~relevant tax~~ Issuer or the Placement Agents or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other ~~economic considerations relevant to Subscriber’s investment~~ financial information (whether historical or in the ~~Securities. Without limiting the generality~~ form of financial forecasts or projections) of the ~~foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber~~ Issuer have been prepared and reviewed solely by the ~~Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022~~ Issuer and ~~filed with the Securities~~ its officers and ~~Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement,~~ employees and ~~(iii) the Transaction Agreement, a copy of which will be filed~~ have not been reviewed by the ~~Company with the Commission~~Placement Agents or any outside party or, except as expressly set forth therein, certified or audited by an independent third-party auditor or audit firm. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Issuer and the Company~~’s management questions~~, receive such ~~answers~~ answers, including on the financial information, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares and Transferred Sponsor Shares. ~~The~~ Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares, the Transferred Sponsor Shares, and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Subscribed Shares and Transferred Sponsor Shares. Subscriber further acknowledges that Subscriber has not relied upon the ~~information contained~~ Placement Agents in connection with Subscriber’s due diligence review of the ~~Disclosure Documents is subject to change~~offering of the Subscribed Shares, the transfer of the Transferred Sponsor Shares, the Sponsor, and the Issuer. 2.1.9. Subscriber acknowledges that ~~any changes~~ in addition to their capacity as Placement Agents, the Placement Agents are acting as capital market advisors to the ~~information contained~~ Issuer, in each case in connection with the ~~Disclosure Documents, including~~ Transactions. Issuer and the Company are solely responsible for paying any ~~changes based on updated information~~ fees or ~~changes~~ other commission owed to the Placement Agents in ~~terms~~ connection with the Transactions. Subscriber further acknowledges and agrees that (a) it has been informed that each of the ~~Transaction~~Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber, ~~shall~~ the Issuer and the Company or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no ~~way affect~~ responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, the Company or the Transactions, (d) none of the Placement Agents or any of their affiliates have acted as the Subscriber’s ~~obligation to~~ financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares or transfer of the ~~Securities hereunder, except as otherwise provided herein~~Transferred Sponsor Shares, and ~~that~~(e) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in ~~purchasing~~ respect of the ~~Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~Transactions. ~~2.1.9~~ 2.1.10. Subscriber acknowledges that none of the Placement Agents, nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to the Issuer, the Sponsor, the Company or its subsidiaries or any of their respective businesses, the Subscribed Shares or the Transferred Sponsor Shares] or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Sponsor. 2.1.11. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares and transfer of Transferred Sponsor Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares and transfer of Transferred Sponsor Shares, nor were the ~~Securities~~ Subscribed Shares or Transferred Sponsor Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares or Transferred Sponsor Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10~~ 2.1.12. Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription and ownership of the ~~Securities~~Subscribed Shares and Transferred Sponsor Shares and is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares and Transferred Sponsor Shares and have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters as to~~ shall be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment responsible for ~~Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss~~ any of Subscriber’s ~~investment in the Company. Subscriber further acknowledges specifically~~ tax liabilities that may arise as a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 2 contracts

Sources: Subscription Agreement (Complete Solaria, Inc.), Subscription Agreement (Freedom Acquisition I Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with~~ enter into and timely perform its obligations under or consummate the ~~terms of~~ transactions contemplated by this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Study or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has ~~received and~~ received, has had an adequate opportunity to ~~review,~~ review and has reviewed such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Study, Magnet and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionShares. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On Subscriber is not an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code, ~~Subscriber will have sufficient immediately available funds~~ or an entity whose underlying assets are considered to ~~pay~~ include “plan assets” of any such plan, account or arrangement subject to the ~~Purchase Price pursuant to Section 3.1~~fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Issuer as a result of the purchase and sale of Shares hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.18 None of the information provided or to be provided in writing by or on behalf of Subscriber for inclusion in the Joint Proxy Statement or Joint Proxy Statement/Prospectus (each, as defined in the Study Merger Agreement) will contain any untrue statement or a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 2.1.19 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 2 contracts

Sources: Subscription Agreement (Churchill Capital Corp II), Subscription Agreement (Churchill Capital Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Units to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: ~~2.1.1~~ (i) If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ (ii) If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming this Subscription Agreement constitutes a the valid and binding agreement of the other parties hereto, then this Subscription Agreement is the valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (iA) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (iiB) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (iii) The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (iA) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (iiB) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (~~iii~~C) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (iv) Subscriber (iA) if not an Israeli resident or entity, is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (iiB) if an Israeli resident or entity, is an investor in one of the categories of investors listed in the First Addendum to the Israeli Securities Law and set forth in Schedule I and satisfies the applicable requirements set forth on Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor that is investing in the Units and agrees to such implications, (C) is acquiring ~~all of~~ the ~~Securities~~ Units only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Units as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer or an institutional accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act or~~ Units in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Units. ~~2.1.5~~ (v) Subscriber understands ~~and agrees~~ that the ~~Securities~~ Units are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the Securities Law, and that the ~~Securities~~ Units have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands that (A) the Units and ~~agrees that~~ the ~~Securities~~ underlying securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i1) to the ~~Company~~ Issuer or a subsidiary thereof, (2) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (ii3) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and ~~that~~ in each of cases (1) and (3), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Units and the underlying securities may be subject to transfer restrictions under the Securities Law, and (C) any certificates or book entries representing the ~~Securities~~ Units and the underlying securities shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Units and the underlying securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Units and the underlying securities will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Units. ~~2.1.6~~ (vi) Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Units directly from the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the SPAC, the Placement Agents or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. Subscriber further acknowledges that the Placement Agents and their affiliates may have acquired non-public information with respect to the Issuer and the SPAC which Subscriber agrees need not be provided to it. ~~2.1.7~~ (vii) If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Units will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ (viii) In making its decision to purchase the ~~Securities~~Units, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) and the Issuer’s express representations and warranties in Section ‎3(b) hereof. Without limiting the generality of the foregoing, Subscriber has not otherwise relied on any representations, warranties, ~~and covenants of the Company contained in this Subscription Agreement~~statements or other information provided by anyone. Subscriber acknowledges and agrees that Subscriber (A) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Units (including with respect to the Issuer, the SPAC and the Transactions), (B) has made its own assessment and (C) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Units. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Units. ~~The~~ Subscriber ~~further~~ acknowledges that Barclays Capital Inc. and Cantor F▇▇▇▇▇▇▇▇▇ & Co. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the SPAC or the Units or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the SPAC. Subscriber acknowledges that (1) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Units (including information related to the Issuer, the SPAC, or the Units) and the offer and sale of the Units, and (2) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Units. Subscriber acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the Units hereunder. Subscriber further acknowledges and agrees that none the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing shall have any liability to Subscriber, or to any other subscriber, pursuant to, arising out of or relating to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the PIPE Securities, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the PIPE Securities ~~hereunder~~or with respect to any claim (whether in tort, ~~except~~ contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as ~~otherwise~~ expressly provided herein, ~~and that~~or for any actual or alleged inaccuracies, ~~in purchasing~~ misstatements or omissions with respect to any information or materials of any kind furnished by the ~~Securities~~Issuer, ~~Subscriber is not relying upon~~ the SPAC, the Placement Agents or any ~~projections contained in~~ Non-Party Affiliate concerning the ~~Investor Presentation~~Issuer, the SPAC, the Placement Agents, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of the Issuer, the SPAC, the Placement Agents or any of the Issuer’s, the SPAC’s or the Placement Agents’ controlled affiliates or any family member of the foregoing. ~~2.1.9~~ (ix) Subscriber became aware of this offering of the ~~Securities~~ Units solely ~~(a)~~ by means of direct contact from either the ~~Company~~Placement Agents, ~~Holdings,~~ the Issuer or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ SPAC as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer, the SPAC or their respective representatives (including the Placement Agents), and the ~~Securities~~ Units were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents, the Issuer or ~~Holdings~~the SPAC. Subscriber did not become aware of this offering of the ~~Securities~~Units, nor were the ~~Securities~~ Units offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Units (iA) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (iiB) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state or foreign securities laws. ~~2.1.10~~ (x) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Units. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Units, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the SPAC or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it the purchase and sale of the Units hereunder meets (iA) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (iiB) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ (xi) Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Units and determined that the ~~Securities~~ Units are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ (xii) Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ foreign agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Units or made any findings or determination as to the fairness of ~~this investment~~an investment in the Units, nor upon the accuracy or adequacy of the SPAC’s reports, schedules, forms, statements and other documents required to be filed by the SPAC under the Securities Act and the Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof. ~~2.1.13~~ (xiii) Subscriber represents and warrants that neither Subscriber nor any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List,~~ ”) or ~~the Sectoral Sanctions Identification List~~any other similar list of sanctioned persons, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dean

Appears in 2 contracts

Sources: Unit Subscription Agreement (Leibovitch Yoav), Unit Subscription Agreement (Endurance Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ HPX and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ HPX as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, approved by all necessary action, validly executed and delivered by Subscriber. If The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is ~~an individual~~fully consistent with all investment policies, guidelines and other restrictions applicable to the ~~signature on~~ Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and HPX, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance ~~by Subscriber~~ of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated ~~herein~~ herein, including the Transactions, do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, ~~which~~ that would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and~~ adversely affect the ~~legal authority or~~ Subscriber’s ability ~~of Subscriber~~ to ~~comply in all material respects with the terms of~~ acquire and hold Shares and to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (iA) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (9) or (12) of Regulation D under the Securities Act), in ~~each case,~~ either case satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such accountI, and ~~the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such~~ an “institutional account” as defined in FINRA Rule 4512(c), and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”)Shares, (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (iB) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities and~~ securities, (iiC) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares, (D) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring its entire beneficial interest in the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction, (E) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares, and (F) acknowledges that the offering meets the exemptions from filing under FINRA Rules 5123(b)(1)(A), (C) and (J); (ii) Subscriber is located outside the United States and not a U.S. person, (A) Subscriber is acquiring the Shares in an “offshore transaction” meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the offering meets the exemptions from filing under FINRA Rule 5123(c), (C) Subscriber is are aware that the sale to it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the Securities Act, and the Subscriber and the person, if any, for whose account or benefit the Subscriber is acquiring the Shares was located outside the United States and was not a U.S. person at the time (x) the offer was made to it and (y) when the buy order for such Shares was originated, and continues to be located outside the United States and not to be a U.S. person and has not purchased such Shares for the account or benefit of any person located in the United States or who is a U.S. person, or entered into any arrangement for the transfer of such Shares or any economic interest therein to any person located in the United States or any U.S. person, and (D) Subscriber is authorized to consummate the purchase of the Shares offered pursuant to this Subscription in compliance with all applicable laws and regulations of the jurisdiction where such sales are to be made; (iii) Subscriber is resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”); and (v) Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or resident in a jurisdiction other than the Federative Republic of Brazil, and able to hold securities and engage in financial settlement of securities transactions with funds held in the United States. The information provided by Subscriber on Schedule I is true and correct in all respects. ~~2.1.11~~ (e) Together with its investment adviser, if applicable, Subscriber ~~represents~~ understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Brazilian Offering Regulations, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities Act, the Brazilian Offering Regulations or any other applicable securities laws. Subscriber understands that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries or certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber ~~has such knowledge~~ understands and ~~experience in financial and business matters~~ agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to ~~be capable of evaluating the merits and risks~~ readily offer, resell, transfer or pledge or otherwise dispose of the ~~investment in~~ Shares and may be required to bear the ~~Securities, has analyzed and fully considered the risks~~ financial risk of an investment in the ~~Securities and determined~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, transfer or disposition of any of the ~~Securities are a suitable investment for Subscriber and that~~ Shares. (f) Subscriber is ~~able at this time and in~~ purchasing the ~~foreseeable future to bear~~ Shares directly from the ~~economic risk of a total loss of Subscriber’s investment in the Company~~Issuer. Subscriber further acknowledges ~~specifically~~ that ~~a possibility of total loss of investment exists. 2.1.12~~ there have been no representations, warranties, covenants, statements or agreements made to Subscriber ~~understands and agrees that no federal~~ by or ~~state agency has passed upon or endorsed the merits~~ on behalf of the ~~offering~~ Issuer or HPX or any of their respective affiliates, officers or directors, employees, partners, agents or representatives, or any other party to the Transactions or any other person or entity (including the Placement Agents), expressly or by implication (including by omission), other than those representations, warranties, covenants, statements and agreements of the ~~Securities or made any findings or determination as to the fairness of~~ Issuer and HPX expressly set forth in this ~~investment. 2.1.13 Subscriber represents~~ Subscription Agreement, and ~~warrants that~~ Subscriber is not relying on any representations, warranties, covenants, statements or agreements other than those expressly set forth in this Subscription Agreement. (ig) ~~a person or entity named on~~ Subject to the ~~List~~ assumption that the assets of ~~Specially Designated Nationals and Blocked Persons,~~ the ~~Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by~~ Issuer do not constitute “plan assets” under the U.S. ~~Treasury Department’s Office~~ Employee Retirement Income Security Act of ~~Foreign Assets Control~~ 1974, as amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”), if Subscriber is or ~~a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or~~ is acting on behalf ofof an employee benefit plan that is subject to Title I of ERISA, a ~~person~~plan, an individual retirement account or other arrangement that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership section 4975 of the ~~securities~~ U.S. Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person an employee benefit plan that is a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing, but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that its acquisition and holding of Shares do not and will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Code, or under Similar Law or otherwise violate the provisions thereunder. (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber is not relying upon, and has not relied upon, any statements, representation or warranty or other information provided by anyone (including HPX, the Issuer, the Company, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the representations and warranties of the Issuer and HPX expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), HPX, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. Subscriber has received access to and has had an adequate opportunity to review the documents made available to Subscriber by HPX and the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions and receive such answers from HPX and the Issuer or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and HPX expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Issuer, the Company or any other person or entity in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, HPX or any other person or entity in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or reco

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Appears in 1 contract

Sources: Business Combination Agreement (Broadstone Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to ~~Subscriber~~Subscriber at the Closing, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the Company ~~and Holdings~~ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement (including the transactions contemplated herein) has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) general principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations~~ The execution and ~~warranties as set forth in Section 2.2 hereof, the execution,~~ delivery ~~and performance by Subscriber~~ of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber and (iii) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Shares. 2.1.4 The execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~Subscriber or any of its subsidiaries~~ Subscriber, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole~~ability of, or ~~materially and adversely affect~~ prevent, impair, delay or impede the legal authority ~~or ability of~~ of, Subscriber to ~~comply~~ enter into and timely perform in ~~all~~ any material ~~respects with the terms of~~ respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or any of its subsidiaries in any material respect;~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.5 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by Subscriber of this Subscription Agreement. 2.1.6 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities ~~Act~~Act (“Regulation D”)), in each case, satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is ~~acquiring all~~ aware that this offering of the ~~Securities~~ Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iv) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (v) acquiring the Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the ~~acknowledgements~~acknowledgments, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~vi) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto, where such information provided shall be accurate and complete in all material respects). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.7 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.8 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction, and as a result, the sale of the Shares to Subscriber is being made pursuant to an exemption from registration under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. By making the representations herein, Subscriber does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the Company or any of its ~~officers~~ affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Company expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by the Company expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan ~~Subscriber~~ Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable ~~similar law~~Similar Law (as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by any Non-Party Affiliate concerning the Company ~~contained in~~ or the Shares, the offer and sale of the Shares or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Company, the offer and sale of the Shares or the other transactions contemplated by the Subscription Agreement and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had ~~the~~ an opportunity to review the documents ~~provided~~ made available to Subscriber by the Company, ~~including~~ (~~collectively,~~ the “Disclosure ~~Documents~~Package”~~): (i)~~ ), provided by the ~~final prospectus of the Company, dated as of January 14, 2022~~ Company and ~~filed with~~ any such documents available on the Securities and Exchange ~~Commission~~ Commission’s (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares and conducted and completed their own independent diligence concerning the Company, the Shares, the offer and sale of the Shares and the other transactions contemplated by this Subscription Agreement. ~~The~~ Based upon such information as Subscriber ~~further~~ has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Company expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Company or the Shares, the offer and sale of the Shares or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that none of its affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~information contained in the Disclosure Documents is subject to change~~foregoing (collectively, ~~and that~~ “Representatives”) have made any ~~changes~~ independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Company or any of its subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained ~~in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction~~herein, shall ~~in no way~~ modify, limit or otherwise affect Subscriber’s ~~obligation~~ right to ~~purchase~~ rely on the ~~Securities hereunder~~Company’s representations, ~~except as otherwise provided herein~~warranties, covenants and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections~~ agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any of its affiliates with respect to its decision to invest in the ~~Investor Presentation~~Shares, including information related to the Company, the Shares and the offer and sale of the Shares and (ii) none of its affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. ~~2.1.9~~ 2.1.14 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, on the ~~Company~~one hand, ~~Holdings, or a representative of~~ and the Company or ~~Holdings~~its representatives, ~~or (b) directly from~~ on the ~~Company as a result of a pre-existing, substantial relationship with the Company, and the Securities~~ other hand. The Shares were offered to Subscriber solely by such direct ~~contact between Subscriber and either the Company or Holdings~~contact. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered to it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered to it in a manner involving a public offering under, or or, to its knowledge, in a distribution in violation of, the Securities ~~Act,~~ Act or any ~~state~~ other applicable securities laws. ~~2.1.10~~ 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares, including those set forth in the Disclosure Package and the Company SEC Documents (as defined below). Subscriber is a sophisticated institutional investor, is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares. Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and ~~Subscriber has sought such accounting~~that none of the Company or any of its agents or affiliates, ~~legal and~~ have provided any tax advice ~~as Subscriber has considered necessary to make an informed investment decision~~or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase and sale of the ~~Securities~~Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ 2.1.16 Subscriber represents and acknowledges that ~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities~~Subscriber, alone, or together with its professional advisor(s), if any, has adequately analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect; or (iii) result in any violation of any statute or any judgment~~is subject, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that which would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), or (7) under the Securities Act), (b) is an Institutional Account as defined in FINRA Rule 4512(c) and (c) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the ~~Subscriber is an entity~~Subscribed Shares and participation in the Subscription (i) are fully consistent with its financial needs, ~~the~~ objectives and condition, and (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to it (if any). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. Subscriber understands that the offering of the Subscribed Shares meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities ~~Act~~Act or the securities laws of any other jurisdiction. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases ‎(i) and ‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the filing by the Issuer of the “Form 10 information” after the closing of the Business Combination and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and agrees that the ~~Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. Subscriber will not look to the Placement Agent for all or part of any such loss or losses Subscriber may suffer. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Oculis, the Placement Agent (as defined below) or any of its ~~officers~~ affiliate or any control persons, officers, directors, employees, partners, agents or representatives, expressly or by implication, other ~~than~~ than, in the case of the Issuer only, those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. Subscriber understands that certain financial information (whether historical or in the form of financial forecasts or projections) of the Issuer and Oculis have been prepared and reviewed solely by the Issuer, Oculis and their respective officers, directors and employees, as applicable, and have not been reviewed by any outside party or, except for the financial statements as expressly set forth in the Registration Statement (as defined below), certified or audited by an independent third-party auditor or audit firm. ~~2.1.7~~ 2.1.7. Subscriber ~~represents~~ does not have, as of the date hereof, and ~~warrants~~ during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the date hereof until and including the date that is two trading days following the Closing such Subscriber will not have, entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Securities Exchange Act of 1934, as amended (ithe “Exchange Act”) it or short sale positions with respect to the securities of the Issuer. 2.1.8. If Subscriber is ~~not a Benefit Plan Subscriber as contemplated by~~ an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.9. To the Subscriber’s knowledge, no disclosure or offering document has been prepared in connection with the offer and sale of the Subscribed Shares by Arctica Finance hf. (the “Placement Agent”). In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including the Placement Agent), other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription AgreementOculis, and ~~(iii)~~ the ~~Transaction Agreement, a copy of which will be filed by the Company with the Commission~~Transactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription and the Transactions, have had the full opportunity to ask such questions, including on the ~~Company’s management questions~~financial information, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and Oculis including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agent in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer. 2.1.10. Subscriber acknowledges and agrees that (a) it has been informed that the Placement Agent is acting solely as placement agent in connection with the Subscription and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a fiduciary for Subscriber, the Issuer, Oculis or any other person or entity in connection with the Transactions, (b) the Placement Agent has not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription and the Transactions, in each case, to Subscriber and such advice or recommendation is not necessary or desired, (c) the Placement Agent will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription and the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning, the Issuer, Oculis, the Subscription or the Transactions, (d) the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agent or its affiliates, shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer, Oculis or any other person or entity) to the maximum extent permitted by applicable law, whether in contract, tort or otherwise, to Subscriber, the Issuer, Oculis or any other person or entity or to any person claiming through each of them, in respect of the Subscription and the Transactions and (e) the Placement Agent and its affiliates and any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agent and its affiliates have made no independent investigation with respect to the Issuer, Oculis, the Subscribed Shares, the Subscription or the Transactions or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to the Placement Agent by the Issuer or Oculis. Subscriber further acknowledges that BofA Securities, Inc. is acting as financial advisor to Oculis in connection with the Transactions and that SVB Securities LLC is acting as Oculis’ capital markets advisor in connection with the Transactions. Subscriber waives and releases any claim that it or its affiliates may have against any Placement Agent and its affiliates and any control persons, officers, directors, employees, partners, agents or representatives of that Placement Agent and its affiliates with respect to any actual or perceived conflict of interest that may arise from such Placement Agent’s engagements as indicated in the ~~Disclosure Documents is subject to change~~immediately preceding sentence, in the context of such Placement Agent’s engagement by the Issuer as the Issuer’s placement agent in connection with the Subscription. The Issuer and ~~that~~ Oculis are solely responsible for paying any ~~changes~~ fees or other commission owed to the ~~information contained~~ Placement Agent in connection with the ~~Disclosure Documents, including any changes based on updated information~~ Subscription or ~~changes in terms of~~ the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationTransactions. ~~2.1.9~~ 2.1.11. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation or general advertising. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deSubscribed Sh

Appears in 1 contract

Sources: Subscription Agreement (European Biotech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) ~~to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that~~ is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to an institutional account as defined in FINRA Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”4512(c), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Lucid, the Placement Agents or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.8 Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.9 No disclosure or offering document has been prepared in connection with the offer and sale of the Shares by any of BofA Securities Inc., Citigroup Global Markets Inc. or their respective affiliates (together, the “Placement Agents”). In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Agreement and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by the Placement Agents or Lucid concerning the Issuer, Lucid or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, Lucid and the Transactions except that the Subscriber specifically acknowledges that it has not had access to or reviewed the audited financial statements of Lucid in the proposed business combination, which the Subscriber has considered not necessary to its decision to purchase the Shares. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer or its representative (including the Placement Agents). Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.11 Subscriber ~~represents and~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the~~ an investment in the ~~Securities~~Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Without limiting the representations, warranties and covenants set forth in this Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber~~ represents and warrants that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or~~ neither Issuer, nor any of its ~~Rule 506(d~~respective affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActShares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18~~ 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of the Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Shares hereunder. 2.1.18 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.19 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.20 The Subscriber acknowledges that (i) the Issuer and the Placement Agents currently may have, and later may come into possession of, information regarding the Issuer or Lucid that is not known to the Subscriber and that may be material to a decision to enter into this transactio

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp IV)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Securities, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Securities, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the Subscribed Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Subscribed Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Securities in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) not acquiring the Subscribed Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Securities. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the Subscribed Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Securities have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the Subscribed Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the Subscribed Securities shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber ~~understands and agrees~~ acknowledges that the Subscribed Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Securities will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the Subscribed Securities and may be required to bear the financial risk of an investment in the Subscribed Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the Subscribed Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Securities are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Securities, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Securities directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the Subscribed Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the Subscribed Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subscribed Securities or the offer and sale of the Subscribed Securities. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the~~ Subscribed Securities~~. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company~~, including ~~(collectively,~~ with respect to the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Securities. ~~The~~ Subscriber ~~further acknowledges that the information contained in the Disclosure Documents~~ represents and warrants it is ~~subject to change~~relying exclusively on its own sources of information, investment analysis and ~~that any changes~~ due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Subscribed Securities and the ~~Disclosure Documents~~business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the Subscribed Securities solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Securities, nor were the Subscribed Securities offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the Subscribed Securities ~~(i)~~ were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Securities or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Securities. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Securities were legally derived. ~~2.1.14 On~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Securities, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Securities. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.14. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Securities hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Accelerate Diagnostics, Inc)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows:: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement.. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect.. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Subscriber acknowledges that the ~~Subscriber is an entity,~~ offering meets the ~~Subscriber is not an entity formed for the specific purpose of acquiring the Securities.~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation.. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agent or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating ~~its~~ our participation in the purchase of the ~~Securities.~~Shares and (B) the purchase and sale of the Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1) 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists.. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment.~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC ~~sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived.. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber~~ represents and warrants that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or~~ neither Issuer, nor any of its ~~Rule 506(d~~respective affiliates (the “Transaction Parties”) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted as the Plan’s fiduciary, or has been relied on ~~behalf~~ for advice, with respect to its decision to acquire and hold the Shares, and none of ~~Subscriber in connection~~ the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with ~~this Subscription Agreement~~ respect to any decision to acquire, continue to hold or transfer the ~~transactions contemplated hereby in such a way as to create any liability on the Company.~~Shares. ~~2.1.17~~ 2.1.15 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Company’s common stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).. ~~2.1.18~~ 2.1.16 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such tha

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp.)

Appears in 1 contract

Sources: Subscription Agreement (Trine Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to each of the ~~Company~~ Cayman Issuer and ~~Holdings~~ New Pubco and acknowledges and agrees with the ~~Company~~ Cayman Issuer and ~~Holdings~~ New Pubco as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of each of the Cayman Issuer, New Pubco, the Seller Representative and FoA, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber ~~understands~~ is (i) an institutional account as defined in FINRA Rule 4512(c), (ii) a sophisticated investor, experienced in investing in private equity transactions and ~~agrees~~ capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understand that the ~~Securities~~ Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Cayman Issuer, New Pubco, the Seller Representative, FoA or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Cayman Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyShares, including ~~(collectively~~with respect to the Cayman Issuer, New Pubco, the ~~“Disclosure Documents”): (i)~~ Seller Representative, FoA and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain and review such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change~~Shares, and ~~that any changes~~ Subscriber has made its own assessment and satisfied itself concerning the relevant tax and other economic considerations relevant to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentationits Subscription. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Cayman Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representatives. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Cayman Issuer or its representative, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Cayman Issuer or ~~Holdings~~its representatives. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Cayman Issuer represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is, or is acting on behalf of, (i) an “employee benefit plan” within the ~~date~~ meaning of Section 3(3) of the ~~Purchase Price will be required~~ Employee Retirement Security Act of 1974, as amended (“ERISA”) that is subject to ~~be funded pursuant~~ Title I of ERISA, (ii) a plan, an individual retirement account or other arrangement that is described in Section 4975(e)(1) of the Internal Revenue Code of 1985, as amended (the “Code”) that is subject to section 4975 of the Code, (iii) an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions of Title I of ERISA or Section ~~3.1~~4975 of the Code (collectively, “Similar Laws”), or (iv) an entity whose underlying assets are considered to include “plan assets” of any of the foregoing described in clauses (i), (ii) and (iii) (each of the foregoing described in clauses (i), (ii), (iii) and (iv) referred to as a “Plan”), Subscriber represents and warrants that (x) neither Cayman Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire or hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares and (y) the acquisition and holding of the Shares will ~~have sufficient immediately available funds to pay~~ not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the ~~Purchase Price pursuant to Section 3.1~~Code, or a similar violation of any applicable Similar Law. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Cayman Issuer’s Ordinary Shares prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18~~ 2.1.16 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.19 Subscriber understands and agrees that no disclosure or offering document has been prepared in connection with the Subscription by M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC or any of its affiliates (“M▇▇▇▇▇ S▇▇▇▇▇▇”), G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC or any of its affiliates (“G▇▇▇▇▇▇ Sachs”) or Credit Suisse Securities (USA) LLC or any of its affiliates (“Credit Suisse” and, together with M▇▇▇▇▇ S▇▇▇▇▇▇ and G▇▇▇▇▇▇ S▇▇▇▇, the “Placement Agents”). 2.1.20 Subscriber has conducted its own investigation of the Issuer and the Shares and has not relied on any statements or other information provided by the Placement Agents concerning the Issuer, the Shares or the Subscription. Subscriber understands and agrees that the Placement Agents and

Appears in 1 contract

Sources: Subscription Agreement (Replay Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Subscriber acknowledges that the ~~Subscriber is an entity,~~ offering meets the ~~Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges that M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agent or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating ~~its~~ our participation in the purchase of the ~~Securities.~~Shares and (B) the purchase and sale of the Shares hereunder meets the exemptions from filing under FINRA Rule 5123(b)(1) 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC ~~sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Company’s common stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18~~ 2.1.16 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of Shares hereunder such that a declaration to the Committee

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Company, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming this Subscription Agreement constitutes a the valid and binding ~~obligation~~ agreement of ~~Subscriber~~the other parties hereto, then this Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or any other applicable securities laws, and that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands ~~and agrees~~ that (A) the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and ~~that~~ in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under applicable securities laws, and (C) any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Company, the SPAC or any of ~~its~~ their respective Affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to ~~purchase~~ acquire the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Company ~~contained in this Subscription Agreement~~concerning the Company or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Company, the SPAC, Holdco and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber acknowledges that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated (the “Placement Agent”) and its directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company, the SPAC, Holdco or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or the SPAC. Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s Affiliates with respect to its decision to invest in the Shares (including information related to the Company, the SPAC, Holdco, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agent nor any of its Affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to ~~purchase~~ acquire the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agent or ~~a representative of the Company or Holdings, or (b) directly from~~ the Company as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Company or its representatives (including the Placement Agent), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase and ownership of~~ investment in the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the acquisition of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity ~~prohibited~~ otherwise blocked by any OFAC sanctions ~~program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national,~~ program or the ~~government, including any political subdivision, agency, or instrumentality thereof,~~ U.S. Department of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”)State. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ SDN List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that none of the Company, Holdco or any of their respective Affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company or the SPAC (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.16 If Subscriber is a foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) and is acquiring a substantial interest (as defined in ~~which~~ 31 C.F.R. § 800.244) in the Company, no national or subnational ~~governments~~ government of a single foreign state ~~have~~ has a substantial interest (as dedefined in 31 C.F.R. § 800.244) in the Subscriber. No Subscriber who is a foreign person (as defined in 31 C.F.R. § 800.224) will acquire control (as defined in 31 C.F.R. § 800.208) of the Company. 2.1.17 On each date the Purchase Price would be required to be funded to the Company pursuant to Section 3 Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.18 Subscriber acknowledges that it is not relying upon, and has not relied upon, any st

Appears in 1 contract

Sources: Subscription Agreement (Vine Hill Capital Investment Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ Pubco and agrees with the Company and ~~Holdings~~ Pubco as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each “Subscriber Affiliate”) absent an effective registration statement under the Securities Act with respect to the ~~Securities except (i)~~ Shares or an opinion of counsel satisfactory to the Company ~~or a subsidiary thereof, or (ii) pursuant to another~~ that such registration statement is not required and an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further~~ acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or Pubco or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, and ask questions with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber ~~and its professional advisor(s), if any,~~ have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information regarding the Company, the Target and the Transaction, as the Subscriber ~~and its professional advisor(s), if any,~~ have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. The Subscriber ~~further~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of R▇▇▇ Capital Partners, LLC, C▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC or O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the ~~Disclosure Documents~~ Shares, including information related to the Company, the Shares and the offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely (a) by means of direct contact from the ~~Company, Holdings, or a representative of the Company or Holdings,~~ Placement Agents or (b) directly from the Company as a result of a pre-~~existing~~exiting, substantial relationship with the Company, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the ~~Company~~ Placement Agents or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately~~ available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition I Co)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company to issue~~ issuance of the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ the Placement Agents and acknowledges and agrees with the Company and ~~Holdings~~ the Placement Agents, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect; or (iii) result in any violation of any statute or any judgment~~is subject, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that which would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act, (c) is an “institutional account” (as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”)), (d) is not a “retail customer” (as defined in Regulation Best Interest promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and (e) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer or an institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that ~~it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any~~ the offering of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): Subscribed Shares meets (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission~~ exemptions from filing under clause (~~the “Commission”~~A) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either ~~the Company~~ clause (C) or ~~Holdings. Subscriber did not become aware~~ clause (J) of ~~this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i~~FINRA Rule 5123(b)(1) ~~were not offered by any form of general solicitation or general advertising~~ and (ii) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ the ~~Securities Act, or any state securities laws. 2.1.10~~ institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subscribed Shares, including those set forth in the investor presentation provided or made available by the Company (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and ~~Subscriber~~ has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.5. If Subscriber is a resident of or incorporated under or otherwise subject to the securities laws of Canada or any province or territory of Canada (a “Canadian Person”), then, in addition to, and not in lieu of, Subscriber’s representations and warranties pursuant to Section 2.1.4, Subscriber represents and warrants that Subscriber (i) is purchasing the Subscribed Shares as principal for its own account, or is deemed to be purchasing the Subscribed Shares as principal for its own account in accordance with applicable Canadian Securities Laws; and (ii) is an “accredited investor” as defined in National Instrument 45-106—Prospectus Exemptions (“NI 45-106”) and the Securities Act (Ontario) and the subscriber has properly completed the Accredited Investor Certificate attached hereto as Schedule II indicating the Subscriber is an accredited investor as so defined. 2.1.6. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that the Subscribed Shares (a) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (b) shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 7 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until April 29, 2025, and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and ~~acknowledges~~ agrees that ~~it (i) is~~ the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~sophisticated investor~~result, ~~experienced in investing in private equity transactions~~ Subscriber may not be able to readily resell the Subscribed Shares and ~~capable of evaluating investment risks independently, both in general and with regard~~ may be required to ~~all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in~~ bear the ~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in~~ financial ~~and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks~~ risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and ~~determined~~ such professional advice as it deems appropriate that the ~~Securities~~ Subscribed Shares are a suitable investment for ~~Subscriber~~ Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s ~~investment in the Company~~investment. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.7. If Subscriber ~~understands~~ is a Canadian Person, the Subscriber acknowledges that, notwithstanding anything herein to the contrary, including Section 2.1.6, the Subscribed Shares will be subject to resale restrictions under Canadian Securities Laws (in addition to resale restrictions under United States securities laws) and ~~agrees~~ that ~~no federal~~ the Subscribed Shares will have attached to them, whether through electronic deposit, an ownership statement or ~~state agency has passed upon~~ written notice provided under a direct registration statement system or ~~endorsed~~ other electronic book-entry system, or on certificates that may be issued, as applicable, a legend (in addition to any other legends applicable to the ~~merits~~ Subscribed Shares) setting out the resale restrictions under applicable securities legislation substantially in the following form and with the information completed, as applicable: 2.1.8. Subscriber does not have, as of the ~~offering~~ date hereof, and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the ~~Securities~~ date hereof until the Disclosure Time (as defined in Section 6.19 below) or ~~made~~ the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any ~~findings~~ “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or ~~determination as~~ short sale positions with respect to the ~~fairness~~ securities of ~~this investment~~the Company. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.9. If Subscriber is ~~not~~ or is acting on behalf of (i) ~~a person or entity named on~~ an employee benefit plan that is subject to Title I of the ~~List~~ Employee Retirement Income Security Act of ~~Specially Designated Nationals and Blocked Persons~~1974, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control as amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) ~~owned~~ a plan, an individual retirement account or ~~controlled by, or acting on behalf of, a person,~~ other arrangement that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership 4975 of the ~~securities~~ Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), ~~or any successor provision~~(iii) ~~acting for the purpose of acquiring, holding or disposing of equity securities of the Company~~ an employee benefit plan (~~within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person~~ such as a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) of ERISA), a church plan (as defined in ~~which~~ Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~national~~ Code (collectively, “Similar Laws”) or ~~subnational governments~~ (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.10. If Subscriber is or is acting on behalf of a ~~single foreign state~~ Plan, Subscriber represents and warrants that none of the Company or any of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. 2.1.11. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Company contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Leerink Partners LLC, Guggenheim Securities, LLC, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇ Fargo Securities, LLC (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Company and its representatives concerning the Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such answers and obtain such information as Subscriber and ▇▇▇▇▇▇▇▇▇▇’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and of the Company. 2.1.12. Subscriber acknowledges and agrees that (i) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a ~~substantial interest~~ fiduciary for Subscriber, the Company or any other person or entity in connection with the Subscription, (~~as de~~ii) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) the Placement Agents will have no responsibility to Subscriber with respect to any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning, the Company or the Subscription, (iv) the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agents or their respect

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations ~~and warranties~~ andwarranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, and is an “accredited investor” pursuant to Section 2.3 of NI 45-106 or, if a resident in Ontario, Section 73.3(2) of the Securities Act (Ontario), as set out in Schedule B attached hereto and is a “permitted client” (as defined in National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations) as set out in Schedule C attached hereto; (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction, including, for greater certainty, as applicable, the securities laws, regulations and rules, and the blanket rulings and policies and written interpretations of, and multilateral or national instruments adopted by, the securities regulatory authorities of the Canadian jurisdiction in which a Subscriber is resident or is subject to, as the context may require, (“Canadian Securities Laws”) (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. If a Subscriber is subscribing as agent or trustee for a principal (beneficial Subscriber) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully managed by it), it has disclosed the name of the Disclosed Principal to the Company and acknowledges that the Company may be required by law to disclose to certain regulatory authorities the identity of each Disclosed Principal for whom the Subscriber is acting. In the case of a subscription for the Securities by a Subscriber acting as trustee or agent for a fully managed account or as agent for a Disclosed Principal, the Subscriber is duly authorized to execute and deliver this Subscription Agreement and all other necessary documentation in connection with such subscription on behalf of the fully managed account or Disclosed Principal, as applicable, and this Subscription Agreement has been duly authorized, executed and delivered by or on behalf of and constitutes a legal, valid and binding agreement of, the fully managed account or Disclosed Principal, as applicable. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. Notwithstanding the foregoing, the Subscriber will consult its own legal advisors with respect to trading in the Securities when issued and with respect to the resale restrictions imposed by the Canadian Securities Laws of the jurisdiction in which the Subscriber resides and other applicable securities laws, and acknowledges and agrees that no representation has been made respecting the applicable hold periods imposed by the Canadian Securities Laws or other resale restrictions applicable to such securities which restrict the ability of the Subscriber (or others for whom it is contracting hereunder) to resell such securities, that the Subscriber (or others for whom it is contracting hereunder) is solely responsible to find out what these restrictions are and the Subscriber is solely responsible (and the Company is not in any way responsible) for compliance with applicable resale restrictions and the Subscriber is aware that it (or disclosed principals for whom it is contracting hereunder) may not be able to resell such securities except in accordance with limited exemptions under the Canadian Securities Laws and other applicable securities laws. The Subscriber further understands and acknowledges that (i) the Company is not a reporting issuer in any province or territory in Canada and its securities are not listed on any stock exchange in Canada and there is currently no public market for the Securities in Canada; and (ii) the Company currently has no intention of becoming a reporting issuer in Canada and the Company is not obligated to file and has no present intention of filing a prospectus with any securities regulatory authority in Canada to qualify the resale of the Securities to the public, or listing the Company’s securities on any stock exchange in Canada and thus the applicable restricted period or hold period may not commence and the Securities may be subject to an unlimited hold period or restricted period in Canada and in that case may only be sold pursuant to limited exemptions under applicable securities legislation. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of ~~January 14~~July 16, ~~2022~~ 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-~~261822~~256578) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, ~~and~~ (iii) the Transaction Agreement, a copy of which will be filed by the Company with the ~~Commission~~Commission and (iv) the investor presentation by the Company and Nauticus (the “Investor Presentation”), a copy of which will be furnished by the Company to the Commission and to any Canadian securities regulatory authority as may be required under Canadian Securities Laws. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, Nauticus, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Placement Agent nor any of the Placement Agent’s affiliates has made or makes any representation as to the Company, Nauticus or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. The Subscriber acknowledges that, except for the Investor Presentation, it has not received or been provided with, nor has it requested, nor does it have any need to receive, any offering memorandum (within the meaning of Canadian Securities Laws), any prospectus, sales or advertising literature, or any other document describing or purporting to describe the Company, Nauticus, their business and affairs or the transactions contemplated herein (including the Transaction) which has been prepared for delivery to, and review by , prospective investors in order to assist them in making an investment decision in respect of the Securities. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Placement Agent, the Company, ~~Holdings,~~ Nauticus or a representative of the Placement Agent, the Company or ~~Holdings~~Nauticus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Company~~ Placement Agent or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities ~~laws~~laws or Canadian Securities Laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as det

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ PubCo to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ PubCo and acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming this Subscription Agreement constitutes the valid and binding agreement of the other parties hereto, ~~the signature on~~ then this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on ~~the business, properties, financial condition, shareholders’ equity or results~~ Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an "accredited investor" and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, and ~~(iii) is acquiring the Securities for investment purposes only and~~ not with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act or~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that (A) the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer, PubCo or ~~a subsidiary thereof~~any of their respective subsidiaries, or (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, or (iv) an ordinary course pledge such as a broker lien over account property generally, and ~~that~~ in each of cases (i), (iii) and (iv), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and (B) any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule 144 promulgated under the Securities Act until at least one year from the filing of “Form 10 information” with the Commission (as defined below) after the Closing Date. Subscriber understands and agrees that the ~~Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities~~ Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from ~~the Company~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, PubCo, or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the representations, warranties,~~ its own investment analysis and ~~covenants of the Company contained in this Subscription Agreement~~due diligence (including professional advice it deems appropriate). Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to PubCo, the Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through Issuer prior to the date of this Subscription Agreement~~, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber further acknowledges that the information ~~contained~~ provided to Subscriber (other than the information expressly set forth in the ~~Disclosure Documents~~ representation and warranties made by the Issuer herein) is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. ~~2.1.9~~ 2.1.8 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company~~ PubCo as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer, PubCo or their respective representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~PubCo. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that~~ it did not become aware of this offering of the ~~Securities~~ Shares (i) ~~were not offered~~ by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.9 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. ~~2.1.11~~ 2.1.10 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Shares. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.11 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity ~~prohibited~~ otherwise blocked by any OFAC sanctions ~~program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national,~~ program or the ~~government, including any political subdivision, agency, or instrumentality thereof,~~ U.S. Department of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”)State. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent ~~required~~required by applicable law, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ SDN List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, 2.1.13 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of ~~the Company~~ PubCo (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a “group” comprised solely of Subscriber and its affiliates. ~~2.1.18 No~~ 2.1.14 If Subscriber is a foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) and is acquiring a substantial interest (as defined in ~~which the~~ 31 C.F.R. § 800.244) in PubCo, no national or subnational ~~governments~~ government of a single foreign state ~~have~~ has a substantial interest (as dedefined in 31 C.F.R. § 800.244) in Subscriber. 2.1.15 On each date the Purchase Price would be required to be funded to PubCo pursuant to Section 3 Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16 Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation, warranty, covenant, or information provided by any person, firm or corporation (including the Company, any of its affiliates or any of its or their respective control persons, officers, directors or employees), other than the SEC Documents (as defined below) and the covenants, representations and warranties of the Issuer or PubCo expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Shares. Subscriber agrees that neither (i) any other subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital (including the controlling persons, officers, directors, partners, agents or employees of any such subscriber) nor (ii) the Company, its affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees, shall be liable to Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares hereunder.

Appears in 1 contract

Sources: Subscription Agreement (Model Performance Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to ~~Subscriber~~Subscriber at the Closing, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the Company ~~and Holdings~~ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement (including the transactions contemplated herein) has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) general principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations~~ The execution and ~~warranties as set forth in Section 2.2 hereof, the execution,~~ delivery ~~and performance by Subscriber~~ of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber and (iii) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Shares. 2.1.4 The execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of ~~Subscriber or any of its subsidiaries~~ Subscriber, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole~~ability of, or ~~materially and adversely affect~~ prevent, impair, delay or impede the legal authority ~~or ability of~~ of, Subscriber to ~~comply~~ enter into and timely perform in ~~all~~ any material ~~respects with the terms of~~ respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or any of its subsidiaries in any material respect;~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.5 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by Subscriber of this Subscription Agreement. 2.1.6 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is ~~acquiring all~~ aware that this offering of the ~~Securities~~ Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iv) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (v) acquiring the Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the ~~acknowledgements~~acknowledgments, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~vi) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto, where such information provided shall be accurate and complete in all material respects). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.7 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.8 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction, and as a result, the sale of the Shares to Subscriber is being made pursuant to an exemption from registration under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. By making the representations herein, Subscriber does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the Company, ▇▇▇▇▇ & Company Capital Markets, a division of J.V.B. Financial Group, LLC (the “Placement Agent”), or any of ~~its officers~~ their respective affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, together with the Placement Agent, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Company expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by the Company expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan ~~Subscriber~~ Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable ~~similar law~~Similar Law (as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by any Non-Party Affiliate concerning the Company ~~contained in~~ or the Shares, the offer and sale of the Shares or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Company, the offer and sale of the Shares or the other transactions contemplated by the Subscription Agreement and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had ~~the~~ an opportunity to review the documents ~~provided~~ made available to Subscriber by the Company, ~~including~~ (~~collectively,~~ the “Disclosure ~~Documents~~Package”~~): (i)~~ ), provided by the ~~final prospectus of the Company, dated as of January 14, 2022~~ Company and ~~filed with~~ any such documents available on the Securities and Exchange ~~Commission~~ Commission’s (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed ~~necessary~~ necessary, without reliance on the Placement Agent, to make an investment decision with respect to the ~~Securities~~Shares and conducted and completed their own independent diligence concerning the Company, the Shares, the offer and sale of the Shares and the other transactions contemplated by this Subscription Agreement. ~~The~~ Based upon such information as Subscriber ~~further~~ has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Company expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Company or the Shares, the offer and sale of the Shares or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that none of the ~~information contained in~~ Placement Agent or any of their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Disclosure Documents is subject to change~~foregoing (collectively, ~~and that~~ “Representatives”) have made any ~~changes~~ independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Company or any of its subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained ~~in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction~~herein, shall ~~in no way~~ modify, limit or otherwise affect Subscriber’s ~~obligation~~ right to ~~purchase~~ rely on the ~~Securities hereunder~~Company’s representations, ~~except as otherwise provided herein~~warranties, covenants and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections~~ agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the ~~Investor Presentation~~Placement Agent or any of their respective affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares and (ii) none of the Placement Agent or any of their affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. ~~2.1.9~~ 2.1.14 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, on the ~~Company~~one hand, ~~Holdings, or a representative of~~ and the Company or ~~Holdings~~its representatives (including the Placement Agent), ~~or (b) directly from~~ on the ~~Company as a result of a pre-existing, substantial relationship with the Company, and the Securities~~ other hand. The Shares were offered to Subscriber solely by such direct ~~contact between Subscriber and either the Company or Holdings~~contact. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered to it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered to it in a manner involving a public offering under, or or, to its knowledge, in a distribution in violation of, the Securities ~~Act,~~ Act or any ~~state~~ other applicable securities laws. ~~2.1.10~~ 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares, including those set forth in the Disclosure Package and the Company SEC Documents (as defined below). Subscriber is a sophisticated institutional investor, is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision~~Shares. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters as to~~ shall be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment responsible for ~~Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss~~ any of Subscriber’s ~~investment in~~ tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that none of the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber Placement Agent or any of ~~its Rule 506(d) Related Parties (as defined below)~~their respective agents or affiliates, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated ~~hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed~~ by ~~such~~ this Subscription Agreement. Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding ~~obligation~~ agreement of ~~Subscriber~~the Issuer, this Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein~~ hereby do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any ~~judgment, order~~Governmental Order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), Governmental Authority having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is ~~acquiring all of~~ aware that the Subscription is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment accounts~~investor accounts over which Subscriber exercises sole discretion, ~~the~~ each owner of such account is a qualified institutional buyer or accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) ~~to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that~~ is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to an institutional account as defined in FINRA Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”4512(c), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating its participation in the ~~purchase~~ Subscription. Accordingly, Subscriber understands that the Subscription meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the ~~Securities~~Securities Act and that the offer and sale of the Shares has not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S promulgated under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Shares shall contain a legend to such effect (the “Securities Act Legend”). Subscriber acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, ColdQuanta or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. No disclosure or offering document has been prepared by ▇.▇. ▇▇▇▇▇▇ Securities LLC or Citigroup Global Markets Inc. (“Citigroup”) or their respective affiliates (collectively, the “Placement Agents”) in connection with the offer and sale of the Shares. Subscriber acknowledges that neither of the Placement Agents nor any of their respective affiliates has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired. Neither of the Placement Agents nor any of their respective directors, officers, employees, representatives or controlling persons has made any independent investigation with respect to the Issuer or ColdQuanta, the Shares or the completeness or accuracy of any information provided to Subscriber. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation as to Issuer or ColdQuanta or the quality or value of Issuer, ColdQuanta or the Shares. Subscriber agrees that neither of the Placement Agents nor any of their respective affiliates or any of their respective affiliates’ control persons, officers, directors or employees, shall be liable to Subscriber pursuant to this Subscription Agreement (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscription. This undertaking is given freely and after obtaining independent legal advice. 2.1.8 Subscriber represents and warrants that its acquisition and holding of Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.9 In making its decision to subscribe for the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Subscription Agreement, the SEC Documents and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by the Placement Agents or ColdQuanta concerning the Issuer, ColdQuanta or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer, ColdQuanta and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer, the Placement Agents or their respective representatives. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in Rule 502(c) of Regulation D promulgated under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.11 Subscriber ~~represents and~~ acknowledges that it is aware that there are substantial risks incident to the subscription for, and ownership of, the Shares, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the~~ an investment in the ~~Securities~~Shares, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is ~~able~~ able, at this time and in the foreseeable ~~future~~ future, to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal (U.S. or foreign) or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable ~~law~~Law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable ~~law~~Law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities were~~ Shares are legally derived. ~~2.1.14 On~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer, nor any of its ~~Rule 506(d) Related Parties~~ affiliates (~~as defined below~~the “Subscriber Parties”), ~~except~~has acted as the Plan’s fiduciary, ~~if applicable~~or has been relied on for advice, ~~for a Disqualification Event~~ with respect to its decision to acquire and hold the Shares, and none of Subscriber Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~which Rule 506(d)(2)(ii)~~ any decision to acquire, continue to hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActShares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Securities and Exchange Commission (the “Commission”) with respect to the “beneficial ~~ownership~~ ownership” (as such term is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the ~~securities of the Company prior to the date hereof~~Issuer’s Class A ordinary shares, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange ~~Act of 1934, as amended (the “Exchange~~ Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deof

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp X/Cayman)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Warrants to each Subscriber, ~~Subscriber~~ each Subscriber, severally (and not jointly), hereby represents and warrants (as to itself only) to the Company and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Company, severally (and ~~Holdings~~ not jointly), as follows: 2.1.1 If the Subscriber is not an individual, the Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its several (and not joint) obligations under this Subscription Agreement. If such Subscriber is an individual, the Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If the Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by the Subscriber. If the Subscriber is an individual, the signature on this Subscription Agreement is genuine, and the Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Company, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against such Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement ~~and the consummation of the transactions contemplated herein~~ do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AII, (ii) is acquiring ~~all of~~ the ~~Securities~~ Warrants only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Warrants as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall ~~provide~~ provide, at the ~~requested~~ Company's request, the information ~~set forth~~ on Schedule AII following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Warrants. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Warrants have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Warrants will not be eligible for resale pursuant to Rule ~~144A promulgated under the Securities Act.~~ 144A. Subscriber understands and agrees that the ~~Securities~~ Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is ~~purchasing~~ subscribing for the ~~Securities~~ Warrants directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber with respect to the Warrants by the Company or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Each Subscriber represents and warrants (as to itself only) that ~~(i) it is~~ its acquisition and holding of the Warrants will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to ~~purchase~~ subscribe for the ~~Securities~~Warrants, each Subscriber represents (as to itself only) that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Company ~~contained in this Subscription Agreement~~and its representatives concerning the Company or the Warrants or the offer and sale of the Warrants. Subscriber acknowledges and agrees (as to itself only) that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant~~ Warrants, including with respect to ~~Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by~~ the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees (as to itself only) that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationWarrants. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Warrants solely ~~(a)~~ by means of direct contact ~~from the Company, Holdings, or a representative of~~ between Subscriber and the Company or ~~Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Company or its representative, and the ~~Securities~~ Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the Company or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Warrants, nor were the ~~Securities~~ Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Warrants (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription for and ownership of the ~~Securities~~Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges (as to itself only) that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Warrants and determined that the ~~Securities~~ Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Warrants or made any findings or determination as to the fairness of ~~this investment~~an investment in the Warrants. 2.1.13 Subscriber represents and warrants (as to itself only) that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents (as to itself only) that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents (as to itself only) that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. 2.1.14 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, ~~and~~ a plan, an individual retirement account or other arrangement that is subject to ~~otherwise ensure compliance with OFAC~~section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-~~administered sanctions programs.~~ U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~further~~ represents and warrants ~~that~~(as to itself only) that neither the Company, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the ~~extent required~~Warrants, itand none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, ~~directly~~ continue to hold or ~~indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that~~ transfer the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1Warrants. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Company’s Common Stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Company as a result of the issuance of the Warrants hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the issuance of the Warrants hereunder. 2.1.17 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement in such a way as to create any liability on the Company.

Appears in 1 contract

Sources: Subscription Agreement (Green Plains Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Company to issue the Securities to Subscriber,~~ Subscriber hereby represents and warrants ~~to the Company and Holdings and agrees with the Company and Holdings as follows~~that: ~~2.1.1~~ (a) If Subscriber is not a natural person, (i) Subscriber has been duly organized, formed or ~~incorporated~~ incorporated, as the case may be, and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of ~~incorporation~~ organization, formation or ~~formation~~incorporation, as the case may be, with all requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. , and (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. (b) If Subscriber is ~~an individual~~a natural person, (i) Subscriber has ~~the~~ all requisite power and authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized~~, ~~executed and delivered by~~ (ii) Subscriber~~. If Subscriber is an individual, the~~ ’s signature on this Subscription Agreement is ~~genuine,~~ genuine and Subscriber has duly executed and delivered this Subscription Agreement, and (iii) Subscriber has all requisite legal competence and capacity to ~~execute~~ acquire and hold the ~~same. This~~ Acquired Shares and to execute, deliver and comply with the terms of this Subscription Agreement. (c) Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (d) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not ~~(i)~~ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or, if applicable, any of its subsidiaries is a party or by which Subscriber or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if applicable, any of its subsidiaries is subject, which would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a material adverse effect on the business, ~~properties~~properties or financial condition of Subscriber, ~~financial condition~~or, ~~shareholders~~if applicable, the stockholders’ equity or results of operations of Subscriber ~~and~~ or, if applicable, any of its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with ~~the terms of~~ Subscriber’s obligations under this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”);~~ Agreement, (ii) ~~if Subscriber is not an individual, result in any violation of the provisions of~~ the organizational documents of Subscriber ~~or any of its subsidiaries in any material respect;~~ if Subscriber is not a natural person, or (iii) ~~result in any violation of~~ any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4 The~~ (e) Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor~~” (within the meaning of Rule 501(a) under the Securities Act), in each case~~, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and in connection with ~~regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating~~ its participation in the ~~purchase~~ Offering. Subscriber represents that it is purchasing its entire beneficial ownership interest in the Acquired Shares for its own account (and not for the account of others) for investment purposes and not with a view to the distribution thereof in violation of the ~~Securities. 2.1.11~~ securities laws of the United States or any other jurisdiction, provided, that (subject to the securities laws of the United States or any other jurisdiction) disposition of Subscriber’s property shall at all times be within Subscriber’s control. Subscriber understands that (1) the Acquired Shares (A) have not been registered under the securities laws of the United States or any other jurisdiction and may be resold or transferred in the United States or otherwise only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, and (B) may only be resold or transferred in compliance with applicable law and the restrictions on transfer set forth in this Subscription Agreement, and that (2) the Issuer is not required to register the Acquired Shares other than as provided in Section 6 of this Agreement. Subscriber further represents and warrants that it will not sell, transfer or otherwise dispose of the Acquired Shares or any interest therein except in a registered transaction or in a transaction exempt from or not subject to the registration requirements of the Securities Act and except in accordance with the terms and conditions of this Subscription Agreement. Subscriber acknowledges that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement. For the avoidance of doubt, the Issuer acknowledges that Subscriber ~~has such knowledge~~ was formed for the purpose of subscribing for the Acquired Shares and ~~experience~~ that neither Subscriber’s admission of its members, investors, or interest holders nor its distribution of Acquired Shares to its members, investors, or interest holders in ~~financial and business matters as to~~ a pro rata distribution for no consideration shall be ~~capable~~ a breach of ~~evaluating the merits and risks~~ any of the ~~investment~~ representations or other agreements made in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment existsSection 5(e). 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 (f) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Acquired Shares were legally derived. ~~2.1.14 On~~ (g) The purchase of Acquired Shares by Subscriber has not been solicited by or through anyone other than the ~~date~~ Issuer or the ~~Purchase Price~~ Agent. (h) Subscriber acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement, unless and until such transfer restrictions have been removed in accordance with Section 10(d) of this Subscription Agreement and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. Subscriber also acknowledges that the Acquired Shares will not immediately be ~~funded~~ eligible for offer, resale, transfer, pledge or disposition pursuant to ~~Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in~~ Rule ~~506(d)(1)(i)-(viii)~~ 144 promulgated under the Securities Act (a “~~Disqualification Event~~Rule 144”), and that the provisions of Rule 144(i) ~~is applicable~~ will apply to the Acquired Shares. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of ~~its Rule 506(d~~the Acquired Shares. (i) ~~Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3)~~ Subscriber understands and agrees that Subscriber is ~~applicable~~purchasing the Acquired Shares directly from the Issuer. Subscriber ~~hereby agrees~~ further acknowledges that ~~it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable~~ (i) there have been no, and will be no, representations, warranties, covenants or agreements (express or implied, of any kind or character) made to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with Subscriber’s purchase of the Acquired Shares by the Issuer, the Agent, the Company, the Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective Representatives, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Subscription Agreement, (ii) the Agent has not provided any advice or recommendation to Subscriber in connection with Subscriber’s purchase of the Acquired Shares, and (iii) the Agent will not have any responsibility to Subscriber with respect to (x) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (y) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. (j) In making its decision to purchase the Acquired Shares, Subscriber represents that it has relied solely upon the independent investigation made by Subscriber and has independently made its own analysis and decision to enter into this Subscription Agreement or and purchase the ~~transactions contemplated hereby~~ Acquired Shares, in each case, based on such ~~a way~~ information as ~~to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by~~ such Subscriber ~~with~~ has deemed appropriate and without reliance upon the ~~Commission~~ Agent or any of Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~beneficial~~ Acquired Shares, including with respect to the Issuer, the Transactions, the Company, the Charterhouse Parties and their respective affiliates and Representatives. Subscriber represents and warrants that Subscriber and Subscriber’s professional advisor(s), if any, (i) were given the opportunity to ask questions and receive answers concerning the terms and conditions of the Subscription, the Issuer, the Company, the Charterhouse Parties and to obtain any additional information which the Issuer possessed or could acquire without unreasonable effort or expense and (ii) received, reviewed and understood the offering materials made available to it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the Transactions. Except for the representations, warranties and agreements of the Issuer set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it may deem appropriate) with respect to the Subscription, the Acquired Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Company and the Charterhouse Parties, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a placement agent for the Issuer (together with its affiliates and any of its or their control persons, officers, directors and employees, the “Agent”), and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or by contact between Subscriber and the Agent. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D of the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. (l) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~securities~~ Acquired Shares, including those set forth in the SEC Documents and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that Subscriber has, alone, or together with any professional advisor(s), adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the ~~Company prior~~ Acquired Shares (i) is fully consistent with its financial needs, objectives and condition, (ii) comply and is fully consistent with all investment policies, guidelines and other restrictions applicable to it, and (iii) is a fit, proper and suitable investment for it, notwithstanding the substantial risks inherent in investing in or holding the Acquired Shares. Subscriber acknowledges that it is able to bear the substantial risk associated with the purchase of the Acquired Shares, and specifically that a possibility of total loss exists. (n) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the ~~date hereof,~~ fairness of an investment in the Acquired Shares. (o) If Subscriber is ~~not currently~~ or is acting on behalf of (~~and at all times through Closing will refrain from being or becoming~~i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a ~~member of a “group” (within the meaning of~~ plan, an individual retirement account or other arrangement that is subject to Section ~~13(d)(3) or Section 14(d)(2)~~ 4975 of the ~~Securities Exchange Act~~ Internal Revenue Code of ~~1934~~1986, as amended (the “~~Exchange Act~~Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or ~~any successor provision~~(iv) ~~acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person~~ an employee benefit plan that is a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest (as de~~church

Appears in 1 contract

Sources: Assignment and Subscription Agreement (GSAM Holdings LLC)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Units to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to to1 the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole,~~ whole (a “Subscriber Material Adverse Effect”) or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber ~~(i)~~ is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”)~~, in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (iii) is acquiring ~~all of~~ the ~~Securities~~ Units only for ~~his, her or~~ its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (~~iii~~ii) is not acquiring the ~~Securities for investment purposes only and not~~ Units with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Units are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Units may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares and Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and/or Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares and Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares and/or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Units directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that ~~(i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii)~~ its acquisition and holding of the ~~Securities~~ Shares and Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Units, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. Subscriber ~~acknowledges and agrees~~ represents that ~~Subscriber~~ it has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionUnits. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationUnits. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Units (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, except for the statements, representations and warranties contained in the private placement documentation. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Units. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Units, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Units and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Units or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Units were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the ~~Purchase Price~~ applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule ~~506(d)(1)(i)-(viii~~506(d)(1)(i-viii) ~~under~~ of the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~direct~~ beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~under~~ of the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Hycroft Mining Holding Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the Issued Securities and the Warrants to ~~Subscriber~~Subscriber and to induce the Issuer to agree to the other terms and provisions herein, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: ~~2.1.1~~ 3.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 3.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber,~~ enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, ~~and~~ or (ii) principles of equity, whether considered at law or ~~equity~~equity (the “Enforceability Exceptions”). ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 3.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into, or its ability to timely perform its obligations under, this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 3.1.4 Subscriber (i) is an Institutional Account (as defined in FINRA Rule 4512(c)), (ii) is (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or (y) an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (iiiii) is acquiring ~~all of~~ the ~~Securities~~ Convertible Notes, the Shares and the Warrants, as applicable, only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Convertible Notes, the Shares and the Warrants as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer or an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (~~iii~~iv) is not acquiring the ~~Securities for investment purposes only and not~~ Convertible Notes, the Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Convertible Notes, the Shares or the Warrants. ~~2.1.5~~ 3.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Convertible Notes, the Shares and the Warrants are being offered and transferred, as applicable, in a transaction not involving any public offering within the meaning of the Securities Act and that none of the ~~Securities~~ Convertible Notes, the Shares or the Warrants have ~~not~~ been registered under the Securities Act. Subscriber understands that Convertible Notes, the Shares and ~~agrees that~~ the ~~Securities~~ Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Convertible Notes, the Shares or the Warrants shall contain a ~~restrictive~~ legend (or book entries with respect to the Convertible Notes, the Shares or the Warrants shall contain a notation) to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions andthat, as a result of ~~these~~ the transfer ~~restrictions~~restrictions described in this Section 3.1.5, Subscriber may not be able to readily resell the ~~Securities and may be required to bear~~ Convertible Notes, the ~~financial risk of an investment in~~ Shares or the ~~Securities for an indefinite period of time~~Warrants. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Convertible Notes, the Shares or the Warrants. ~~2.1.6~~ 3.1.6 Subscriber understands that each book-entry for the Convertible Notes, the Shares and the Warrants shall contain a notation, and each certificate (if any) evidencing the Convertible Notes, the Shares or the Warrants shall be stamped or otherwise imprinted with a legend, in substantially the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. 3.1.7 Subscriber understands and agrees that Subscriber is purchasing the Issued Securities and the Warrants directly from the ~~Company~~Issuer, is acquiring the Transfer Shares from the Issuer and the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any) directly from the Escrow Agent. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Transferors, the SPAC, the Company or any of ~~its~~ their respective agents, affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ made by the Issuer and the SPAC expressly set forth in this Subscription Agreement, the Term Sheet, the Indenture and Subscriber is not relying on any representations, ~~warranties~~ warranties, covenants or ~~covenants~~ agreements other than those made by the Issuer and the SPAC expressly set forth in this Subscription Agreement, the Term Sheet and the Indenture. ~~2.1.7~~ 3.1.8 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Convertible Notes, the Shares and the Warrants, as applicable, will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)~~, or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA~~, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. ~~2.1.8~~ 3.1.9 In making its decision to subscribe for and purchase the ~~Securities~~Issued Securities and the Warrants and to acquire the Transfer Shares, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any), Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber~~ Subscriber; provided, however, that the foregoing does not limit or modify the representations or warranties of the Issuer and the ~~representations~~SPAC in Section 3.2 of this Subscription Agreement or the other agreements of the SPAC and the Issuer set forth in this Subscription Agreement or the right of Subscriber to rely thereon. Without limiting the generality of the foregoing, ~~warranties~~Subscriber has not relied on any statements or other information provided by anyone other than the SPAC and the Issuer concerning the SPAC, the Issuer, the Issued Securities, the Transfer Shares, the Warrants, the Make-Whole Shares or the Additional Make-Whole Shares or the offer and ~~covenants~~ sale of the Issued Securities or the Warrants or the transfer of the Transfer Shares, the Make-Whole Shares (if any) or the Additional Make-Whole Shares (if any), except, in the event that Subscriber is or was a stockholder of the Company ~~contained~~ as of the date hereof, for any information Subscriber has acquired in such capacity (but as to which information Subscriber acknowledges and agrees neither the Issuer, the Transferors, SPAC, the Company nor any other Person acting on behalf of the Issuer, SPAC or the Company makes or has made in this Subscription ~~Agreement~~Agreement or in the Term Sheet any representation or warranty of any kind whatsoever, including as to the accuracy or completeness thereof, and Subscriber hereby disclaims reliance, and hereby represents that it will not rely, on any actual or purported representation or warranty in respect of such information by the Issuer, the Transferors, SPAC, the Company or any Person acting on behalf of the Issuer, SPAC or the Company). Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to ~~review,~~ review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and ~~made its own assessment and is satisfied concerning~~ the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyAdditional Make-Whole Shares (if any), including ~~(collectively~~with respect to the Issuer, the ~~“Disclosure Documents”): (i) the final prospectus of the Company~~Transferors, ~~dated as of January 14~~SPAC, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company ~~with~~ and the ~~Commission~~Transactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that~~ Convertible Notes, the ~~information contained in~~ Shares and the ~~Disclosure Documents is subject to change~~Warrants, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as ~~otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~applicable. ~~2.1.9~~ 3.1.10 (i) Subscriber became aware of this offering and transfer, as applicable, of the ~~Securities~~ Convertible Notes, the Shares and the Warrants solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, on the ~~Company~~one hand, ~~Holdings~~and (a) Nomura Securities International, or Inc. (“Nomura”) and Barclays Capital Inc. (“Barclays,” and each of Nomura and Barclays, a ~~representative of~~ “Placement Agent” and together the ~~Company or Holdings,~~ “Placement Agents”) or (b) ~~directly from~~ the ~~Company as a result of~~ Issuer, the Transferors and SPAC, on the other hand, (ii) Subscriber has a pre-~~existing~~existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with such Placement Agent or the Issuer, ~~substantial relationship with~~ the ~~Company~~Transferors and SPAC, as applicable, or its Representatives, and (iii) the ~~Securities~~ Convertible Notes, the Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ such Placement Agent or the ~~Company or Holdings~~Issuer, the Transferors and SPAC, as applicable. Subscriber did not become aware of this offering and transfer, as applicable, of the ~~Securities~~Convertible Notes, the Shares or the Warrants, nor were the ~~Securities~~ Convertible Notes, the Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as Subscriber’s financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Convertible Notes, the Shares and the Warrants (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 3.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Convertible Notes, the Shares and the Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Convertible Notes, the Shares and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. ~~2.1.11~~ 3.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any) and determined that the ~~Securities~~ Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) and the Additional Make-Whole Shares (if any), as applicable, are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 3.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Convertible Notes, the Shares or the Warrants or made any findings or determination as to the fairness of ~~this investment~~an investment in the Convertible Notes, the Shares, the Warrants, the Make-Whole Shares (if any) or the Additional Make-Whole Shares (if any). ~~2.1.13~~ 3.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), ~~and~~ and, to the extent required, its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Convertible Notes, the Shares and the Warrants, as applicable, were legally derived. ~~2.1.14 On~~ 3.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents Code or an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (~~is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15collectively, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange ActSimilar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any ~~successor provision~~such plan, account or arrangement (each, a “Plan”) ~~acting for~~ subject to the ~~purpose~~ fiduciary or prohibited transaction provisions of ~~acquiring, holding~~ ERISA or ~~disposing of equity securities~~ section 4975 of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deCode, Subscriber represents and

Appears in 1 contract

Sources: Subscription Agreement (ACKRELL SPAC Partners I Co.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ Pubco to issue the ~~Securities~~ Pubco Shares to Subscriber, Subscriber hereby represents and warrants to ~~the Company and Holdings~~ Pubco, and agrees with ~~the Company and Holdings~~ Pubco, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with the power and authority to enter into, deliver and perform all of its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding ~~obligation~~ agreement of ~~Subscriber~~the Pubco, this Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Pubco Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Pubco Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Pubco Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act or~~ Act. Subscriber has completed Schedule A following the ~~laws of any jurisdiction (~~signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~set forth on Schedule A)~~contained therein is accurate and complete. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Pubco Shares. Subscriber understands and acknowledges that the purchase of the Pubco Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Pubco Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Pubco Shares have not ~~been~~ been, and will not be registered under the Securities ~~Act~~Act prior to Closing. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Pubco Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber, any investment fund or managed account managed by the same investment adviser as the Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each “Subscriber Affiliate”) absent an effective registration statement under the Securities Act ~~with respect to the Securities~~ except (i) to the ~~Company~~ Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and that any certificates or book entries representing the ~~Securities~~ Pubco Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Pubco Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Pubco Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Pubco Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Pubco Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Pubco Shares. 2.1.6 Subscriber ~~understands~~ acknowledges and agrees that the Subscriber is purchasing the ~~Securities~~ Pubco Shares directly from the ~~Company~~Pubco. Subscriber ~~further~~ acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by ~~the Company~~ Pubco or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Pubco Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Pubco Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Pubco contained in this Subscription Agreement. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, and ask questions and receive answers with respect to, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Pubco Shares and made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Pubco Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has had ~~the~~ an adequate opportunity to review the documents Subscriber deems necessary that have been provided to the Subscriber by Pubco and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber ~~and its professional advisor(s), if any, have~~ has had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information regarding the Company, Pubco and the Transaction, as the Subscriber ~~and its professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the ~~Securities~~Pubco Shares. The Subscriber ~~further~~ acknowledges that, aside from certain disclosures pertaining to valuation, transaction structure, and comparable companies and transactions, no disclosure or any information received by the Subscriber has been prepared by O▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (the “Placement Agent”) and that the Placement Agent and its directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to Pubco or the Pubco Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company or Pubco. The Subscriber acknowledges that it has not relied on any statements or other information provided by the ~~information contained~~ Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the ~~Disclosure Documents~~ Pubco Shares, including information related to the Company, Pubco, the Pubco Shares and the offer and sale of the Pubco Shares. The information provided to the Subscriber is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Pubco Shares solely (a) by means of direct contact from the ~~Company~~Placement Agent, ~~Holdings~~Pubco, the Company or a representative of Pubco or the Company ~~or Holdings,~~ or (b) directly from Pubco or the Company as a result of a pre-existing, substantial relationship with the Company, and the ~~Securities~~ Pubco Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the Placement Agent, Pubco, the Company or ~~Holdings~~a representative of Pubco or the Company. Subscriber did not become aware of this offering of the ~~Securities~~Pubco Shares, nor were the ~~Securities~~ Pubco Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that Pubco represents and warrants that the ~~Securities~~ Pubco Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any other state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Pubco Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Pubco Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and~~ acknowledges that it the purchase and sale of the Pubco Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Pubco Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Pubco Shares and determined that the ~~Securities~~ Pubco Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in ~~the Company~~Pubco. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Pubco Shares or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it,~~ it directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it,~~ it directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Pubco Shares were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing, will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately~~ available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 As of the date hereof and as of the date of Closing, Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. At any time prior to the Closing, Subscriber hereby agrees that it shall notify ~~the Company~~ Pubco promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, at or prior to Closing, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Rodgers Silicon Valley Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming this Subscription Agreement constitutes a the valid and binding agreement of the other parties hereto, then this Subscription Agreement is the valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) if not an Israeli resident or entity, is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act)~~ Act or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if an Israeli resident or entity, is an investor in one of the categories listed in the First Addendum to the Israeli Securities Law and set forth in Schedule I and satisfies the applicable requirements set forth on Schedule I, and by signing below confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being such an investor who is investing in the Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act or~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Securities Law, and that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act or the Securities Law. Subscriber understands ~~and agrees~~ that (A) the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and ~~that~~ in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, (B) the Shares may be subject to transfer restrictions under the Securities Law, and (C) any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) and the Issuer’s express representations and warranties in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not otherwise relied on any representations, warranties, ~~and covenants of the Company contained in this Subscription Agreement~~statements or other information provided by anyone. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Issuer, the Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that Citigroup Global Markets Inc., ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. and BofA Securities, Inc. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. ~~The~~ Subscriber acknowledges that (a) it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares (including information related to the Issuer, the Company, or the Shares) and the offer and sale of the Shares, and (b) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agents or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives (including the Placement Agents), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares, nor upon the accuracy or adequacy of the Company’s or Issuer’s reports, schedules, forms, statements and other documents required to be filed by the Company and Issuer under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity ~~prohibited~~ otherwise blocked by any OFAC sanctions ~~program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national,~~ program or the ~~government, including any political subdivision, agency, or instrumentality thereof,~~ U.S. Department of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”)State. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ SDN List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber Code or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity an employee benefit plan that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that neither the Issuer nor any of its affiliates (collectively, the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be

Appears in 1 contract

Sources: Subscription Agreement (Valens Semiconductor Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares and the Warrants only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares or the Warrants as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares or the Warrants. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares and the Warrants have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares or the Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares or the Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares or the Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares or the Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares and the Warrants directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Holdings, Music or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares and the Warrants will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares and the ~~representations, warranties,~~ Warrants or the offer and ~~covenants~~ sale of the ~~Company contained in this Subscription Agreement~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and ~~made its own assessment and is satisfied concerning~~ the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyWarrants, including ~~(collectively~~with respect to the Issuer, Holdings, Music and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that~~ Shares and the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationWarrants. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares and the Warrants solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares and the Warrants, nor were the ~~Securities~~ Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares and the Warrants (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares and the Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and the Warrants and determined that the ~~Securities~~ Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or the Warrants or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares or the Warrants. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares and the Warrants were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Shares and the Warrants, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Shares and the Warrants. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Issuer as a result of the purchase and sale of Shares and the Warrants hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Shares and the Warrants hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Shares and Warrants. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Note, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has [been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with ~~power~~ power] and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not [(i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii)~~ ii)] result in any violation of any law, statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated [institutional] investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Note, in each case, satisfying the applicable requirements set forth on Schedule AI, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB who is investing in the Note, (ii) is acquiring ~~all of~~ the ~~Securities~~ Note only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Note as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Note in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Note and is not acquiring the Note with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Accordingly, Subscriber understands that the ~~Subscriber is an entity,~~ offering of the Note meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). [Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Note.] ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities are~~ Note is being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to the Subscriber is being made in reliance on a private placement exemption from registration under the Securities ~~have~~ Act, that the Note has not been registered under the Securities Act or any other applicable securities laws, and that the Note is being offered for resale in transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Note may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from or in a transaction not subject to the registration requirements of the Securities ~~Act that is available~~ Act, and in each case, in accordance with any other applicable securities laws, and that ~~any book entries representing~~ the ~~Securities~~ Note shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Note will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Note will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Note and may be required to bear the financial risk of an investment in the ~~Securities~~ Note for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition of any~~ transfer of the ~~Securities~~Note. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Note is a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Note. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Note directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Solaria, FACT, or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription ~~Agreement~~Agreement or a side letter between the Issuer and the Subscriber, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription ~~Agreement~~Agreement or a side letter between the Issuer and the Subscriber. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 2.1.7. In making its decision to purchase the ~~Securities~~Note, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company contained~~ Issuer expressly set forth in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber acknowledges that it is not relying upon, and has not relied on any representations, warranties, statements or other information provided by anyone. Subscriber acknowledges and agrees that Subscriber has ~~received~~ received, had access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Note, including with respect to the Issuer and ~~made its own assessment~~ the Transactions, and that such information is ~~satisfied concerning~~ preliminary and subject to change and that none of the ~~relevant tax~~ Issuer or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other ~~economic considerations relevant to Subscriber’s investment~~ financial information (whether historical or in the ~~Securities. Without limiting the generality~~ form of financial forecasts or projections) of the ~~foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber~~ Issuer have been prepared and reviewed solely by the ~~Company~~Issuer and its officers and employees and have not been reviewed by any outside party or, ~~including (collectively~~except as expressly set forth therein, ~~the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333~~certified or audited by an independent third-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commissionparty auditor or audit firm. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the ~~Company’s management questions~~Issuer, receive such ~~answers~~ answers, including on the financial information, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Note. ~~The~~ Subscriber ~~further acknowledges that~~ represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the ~~information contained~~ Transactions, the Note and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationNote. ~~2.1.9~~ 2.1.8. Subscriber became aware of this offering of the ~~Securities~~ Note solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Note, nor ~~were~~ was the ~~Securities~~ Note offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i) were~~ Note was not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10~~ 2.1.9. Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription and ownership of the ~~Securities~~Note and is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Note and have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters as to~~ shall be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment responsible for ~~Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss~~ any of Subscriber’s ~~investment in~~ tax liabilities that may arise as a result of the ~~Company. Subscriber further acknowledges specifically~~ transactions contemplated by this Subscription Agreement, and that ~~a possibility~~ neither the Issuer nor any of ~~total loss~~ their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of ~~investment exists~~the transactions contemplated by this Subscription Agreement. ~~2.1.12~~ 2.1.10. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Note or made any findings or determination as to the fairness of ~~this investment~~an investment in the Note. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that none of Subscriber [or any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function] is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “~~OFAC List~~Sanctions Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly [owned or or] controlled by, or acting on behalf of, one or more persons on a ~~person, that is named on an OFAC~~ Sanctions List; (iii) [organized, incorporated, established, ,] located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with sanctions programs administered by OFAC, the European Union, any European United member state, and the United Kingdom, including for the screening of its investors against the ~~OFAC sanctions programs, including~~ Sanctions Lists and the OFAC ~~List, and to otherwise ensure compliance with OFAC-administered~~ sanctions programs. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Note were legally ~~derived~~derived and in compliance with OFAC sanctions programs and were not obtained, directly or indirectly, from a Prohibited Investor. ~~2.1.14~~ 2.1.12. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of the Note hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Note hereunder. 2.1.13. [On the date the Purchase Price ~~will~~ would be required to be funded to the Issuer pursuant to Section ~~3.1,~~ 3.1 Subscriber will ~~have~~ have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1.] 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable2.1.14. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the ~~Company~~Issuer. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Note Subscription Agreement (Freedom Acquisition I Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ New Pubco and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ New Pubco, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not a natural person, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is ~~an individual~~a natural person, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not a natural person, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is ~~an individual~~a natural person, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer and New Pubco, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement is within the powers of the Subscriber and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, as applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or, as applicable, any of its subsidiaries is a party or by which Subscriber or, as applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, as applicable, any of its subsidiaries is subject, ~~which~~ that would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of the Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not ~~an individual~~a natural person, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act2.1.5. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subscribed Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and understands and acknowledges that the historical financial information and forecasts regarding Semantix made available to Subscriber were based on financial information that is preliminary and subject to change based on the completion of the audit of Semantix’s financial statements in accordance with International Financial Reporting Standards and the standards of the Public Company Accounting Oversight Board. Accordingly, Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters~~ shall be responsible for any of Subscriber’s tax liabilities that may arise as ~~to be capable of evaluating the merits and risks~~ a result of the ~~investment in~~ transactions contemplated by this Subscription Agreement, and that neither the ~~Securities~~Issuer, New Pubco nor Semantix has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Subscription Agreement. 2.1.6. Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Subscribed Shares and determined that the ~~Securities~~ Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Subscribed Shares. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.7. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction and that neither New Pubco or any other person is required to register the Subscribed Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands that the Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to New Pubco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 under the Securities Act (“Rule 144”), provided that all of the applicable conditions thereof (including those set out in Rule 144(i) which are applicable to New Pubco) have been met or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions of the United States and other applicable jurisdictions, and that the Subscribed Shares shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. 2.1.8. Subscriber understands, acknowledges and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, New Pubco, Semantix, or any of their respective affiliates, control persons, officers, directors, employees, agents or representatives, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.9. If Subscriber is or is acting on behalf of an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”). 2.1.10. Subscriber acknowledges and agrees that Subscriber has received, reviewed and understood the offering materials made available to it in connection with the Transactions and such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including such information regarding the Transactions and the business of Semantix and its subsidiaries. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer and New Pubco contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone, other than the representations, warranties, covenants and agreements of the Issuer and New Pubco expressly set forth in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, New Pubco, Semantix and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares and Semantix. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, New Pubco and Semantix including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.11. Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means, including by means of general solicitation. Subscriber acknowledges that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) to its knowledge, are not being offered to Subscriber in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.12. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.13. Subscriber represents and warrants that neither the Subscriber nor, if Subscriber is not a natural person, any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function, is (i) a ~~person~~ person, government, or governmental entity ~~named on~~ that is the ~~List~~ target of ~~Specially Designated Nationals and Blocked Persons~~economic or financial sanctions requirements, or trade embargoes imposed, administered, or enforced by the U.S. government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State), the ~~Executive Order 13599 List~~United Nations, the ~~Foreign Sanctions Evaders List~~European Union or any individual European Union member state, the United Kingdom, or other governmental authority (collectively, “Sanctions”), to the ~~Sectoral Sanctions Identification List~~extent applicable, ~~each~~ including (A) a person listed on any list of ~~which is administered~~ sanctioned persons maintained by the U.S. Treasury Department’s Office of Foreign Assets ~~Control (“OFAC”) or in any Executive Order issued by~~ Control, the ~~President~~ U.S. Department of State, the United ~~States and administered by OFAC (“OFAC List”)~~Nations, the European Union or any individual European Union member state, the United Kingdom, or other governmental authority, to the extent applicable; (B) a person ~~or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii)~~ organized, incorporated, established, located, or resident ~~or born in~~in Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or ~~a citizen, national, or the government, including~~ any ~~political subdivision, agency, or instrumentality thereof, of any~~ other country or territory embargoed or subject to ~~substantial trade restrictions by the United States~~comprehensive Sanctions; (ivC) any person directly or indirectly owned or controlled by any person or persons described in the foregoing clauses (A) and (B); (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (~~collectively~~together with (i) and (ii), a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed ~~for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and~~ to ~~otherwise~~ ensure compliance with ~~OFAC-administered sanctions programs~~applicable Sanctions and that for the past five years, Subscriber has been in compliance with applicable Sanctions and the BSA/PATRIOT Act, as applicable. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deto

Appears in 1 contract

Sources: Subscription Agreement (Alpha Capital Acquisition Co)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ PubCo to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ PubCo and acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming this Subscription Agreement constitutes the valid and binding agreement of the other parties hereto, ~~the signature on~~ then this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, in each case, which would reasonably be expected to have a material adverse effect on ~~the business, properties, financial condition, shareholders’ equity or results~~ Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, as applicable, or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an "accredited investor" and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, and ~~(iii) is acquiring the Securities for investment purposes only and~~ not with a view ~~to, or for offer or sale in connection with,~~ to any distribution ~~thereof in violation~~ of the ~~Securities Act or~~ Shares in any manner that would violate the federal securities laws of the United States or any other applicable jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that (A) the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer, PubCo or ~~a subsidiary thereof~~any of their respective subsidiaries, or (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, or (iv) an ordinary course pledge such as a broker lien over account property generally, and ~~that~~ in each of cases (i), (iii) and (iv), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and (B) any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber acknowledges that the Shares will not immediately be eligible for resale pursuant to Rule 144 promulgated under the Securities Act until at least one year from the filing of “Form 10 information” with the Commission (as defined below) after the Closing Date. Subscriber understands and agrees that the ~~Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities~~ Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a result of these ~~transfer~~ restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from ~~the Company~~PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, PubCo, or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~the representations, warranties,~~ its own investment analysis and ~~covenants of the Company contained in this Subscription Agreement~~due diligence (including professional advice it deems appropriate). Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to PubCo, the Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to Subscriber by ~~the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus~~ or on behalf of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through Issuer prior to the date of this Subscription Agreement~~, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber further acknowledges that the information ~~contained~~ provided to Subscriber (other than the information expressly set forth in the ~~Disclosure Documents~~ representation and warranties made by the Issuer herein) is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. ~~2.1.9~~ 2.1.8 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company~~ PubCo or ~~Holdings, or (b) directly from the Company~~ their respective representatives as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer, PubCo or their respective representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~PubCo or their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that it did not become aware of this offering of the ~~Company represents and warrants that the Securities~~ Shares (i) ~~were not offered~~ by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.9 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. ~~2.1.11~~ 2.1.10 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Shares. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.11 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.12 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599~~ Persons (“SDN List~~, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ ”) administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity ~~prohibited~~ otherwise blocked by any OFAC sanctions ~~program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national,~~ program or the ~~government, including any political subdivision, agency, or instrumentality thereof,~~ U.S. Department of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”)State. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent ~~required~~required by applicable law, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC~~ SDN List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally ~~derived~~and in compliance with OFAC sanctions programs. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, 2.1.13 Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of ~~the Company~~ PubCo (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a “group” comprised solely of Subscriber and its affiliates. ~~2.1.18 No~~ 2.1.14 If Subscriber is a foreign person (as defined in 31 C.F.R. ~~Part~~ § 800.224) and is acquiring a substantial interest (as defined in ~~which the~~ 31 C.F.R. § 800.244) in PubCo, no national or subnational ~~governments~~ government of a single foreign state ~~have~~ has a substantial interest (as dedefined in 31 C.F.R. § 800.244) in Subscriber. 2.1.15 On each date the Purchase Price would be required to be funded to PubCo pursuant to Section 3 Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3. 2.1.16 Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation, warranty, covenant, or information provided by any person, firm or corporation (including the Company, any of its affiliates or any of its or their respective control persons, officers, directors or employees), other than the SEC Documents (as defined below) and the covenants, representations and warranties of the Issuer or PubCo expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Shares. Subscriber agrees that neither (i) any other subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital (including the controlling persons, officers, directors, partners, agents or employees of any such subscriber) nor (ii) the Company, its affiliates or any of their or their respective affiliates’ control persons, officers, directors, partners, agents or employees, shall be liable to Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of PubCo’s share capital for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares hereunder.

Appears in 1 contract

Sources: Subscription Agreement (Model Performance Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Units to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to to[1] the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole,~~ whole (a “Subscriber Material Adverse Effect”) or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber ~~(i)~~ is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”)~~, in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (iii) is acquiring ~~all of~~ the ~~Securities~~ Units only for ~~his, her or~~ its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (~~iii~~ii) is not acquiring the ~~Securities for investment purposes only and not~~ Units with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Units are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Units may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares and Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and/or Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares and Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares and/or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Units directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that ~~(i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii)~~ its acquisition and holding of the ~~Securities~~ Shares and Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Units, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. Subscriber ~~acknowledges and agrees~~ represents that ~~Subscriber~~ it has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionUnits. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationUnits. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Units (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, except for the statements, representations and warranties contained in the private placement documentation. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Units. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Units, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Units and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Units or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Units were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the ~~Purchase Price~~ applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule ~~506(d)(1)(i)-(viii~~506(d)(1)(i-viii) ~~under~~ of the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~direct~~ beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~under~~ of the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Hycroft Mining Holding Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, then this Subscription Agreement is the valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 If the Subscriber is a resident of Israel or an entity organized under the laws of the State of Israel, the Subscriber represents that it is qualified as a “Classified Investor” under the First Supplement of the Israeli Securities Law of 1968, as amended (the “Israeli Securities Law”), by complying with at least one of the items (1) – (11) under such First Supplement. Prior to the date hereof, such Subscriber represents it has informed the Company under which items it is qualified as a “Classified Investor”, and provided the Company with supplemental information necessary to establish such qualification. The Subscriber is aware of the implications of the status of being a Classified Investor specified in the First Supplement of the Israeli Securities Law and consents thereto. 2.1.6 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Issuer, the Company and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by the ~~Company, including (collectively,~~ Company in the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of virtual dataroom to which ~~will be filed by the Company with the Commission~~Subscriber has been granted access. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber acknowledges that ▇. ▇▇▇▇▇ Securities, Inc. (the “Placement Agent”) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the Company. ~~The~~ Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the Placement Agent or any of the Placement Agent’s affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the Company and the Shares, and the offer and sale of the Shares, and (ii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company, Holdings,~~ Placement Agent or ~~a representative of~~ the ~~Company or Holdings, or (b) directly from the Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives (including the Placement Agent), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ 2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (as amended, the “BSA”), as amended by the USA PATRIOT Act of 2001 (as amended, the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. If Subscriber is not an individual, Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were derived legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1and in compliance with OFAC sanctions programs. 2.1.15 If Subscriber ~~represents~~ is an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under~~ is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~Securities Act (a “Disqualification Event”) is applicable to Subscriber~~ Code or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity an employee benefit plan that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERI

Appears in 1 contract

Sources: Subscription Agreement (Otonomo Technologies Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of each Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases ‎(i) and ‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively,~~ with respect to the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that the information contained in the Disclosure Documents~~ represents and warrants it is ~~subject to change~~relying exclusively on its own sources of information, investment analysis and ~~that any changes~~ due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Subscribed Shares and the ~~Disclosure Documents~~business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.14. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ then this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, ~~and~~ or (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares and is an “institutional account” as defined by FINRA Rule 4512(c). 2.1.5 If the Subscriber is a resident of Israel or an entity organized under the laws of the State of Israel, the Subscriber represents that it is qualified as a “Classified Investor” under the First Supplement of the Israeli Securities Law of 1968, as amended (the “Israeli Securities Law”), by complying with at least one of the items (1) – (11) under such First Supplement. Prior to the date hereof, such Subscriber represents it has informed the Issuer under which items it is qualified as a “Classified Investor”, and provided the Issuer with supplemental information necessary to establish such qualification. The Subscriber is aware of the implications of the status of being a Classified Investor specified in the First Supplement of the Israeli Securities Law and consents thereto. 2.1.6 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) pursuant to offers and sales that qualify as “offshore transactions” within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (ii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. Subscriber understands that any certificates or book-entry records representing the Shares shall contain a restrictive legend to such effect in the following form (provided that such legend shall be subject to removal in accordance with Section 9.4 hereof): “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.” ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the SPAC or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants of the Company contained~~ agreements in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Issuer, the SPAC and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to the Subscriber by the ~~Company, including (collectively,~~ Issuer in the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of virtual dataroom to which ~~will be filed by the Company with the Commission~~Subscriber has been granted access. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber acknowledges that BofA Securities, Inc., ▇▇▇▇▇ Fargo Securities, LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the SPAC or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the SPAC. ~~The~~ Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any of the Placement Agents or any of the Placement Agent’s respective affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the SPAC and the Shares, and the offer and sale of the Shares, and (ii) none of the Placement Agents nor any of their respective affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from ~~the Company, Holdings, or a representative~~ either one of the ~~Company~~ Placement Agents or ~~Holdings, or (b) directly from~~ the ~~Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives (including any of the Placement Agents), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ such Placement Agent or the ~~Company or Holdings~~Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, ~~nor~~ nor, to Subscriber’s knowledge, were the ~~Securities~~ Shares offered to ~~Subscriber,~~ Subscriber by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the SPAC or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security the exemptions from filing under FINRA Rule 5123(b)(1)(A)(C) or ~~securities~~ (J) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ 2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber, or its investment adviser, if applicable, hereby acknowledges and agrees that (i) each Placement Agent is acting solely as placement agent in connection with the offering of the Shares and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, the Issuer, the SPAC or any other person or entity in connection with the offering of the Shares, (ii) no Placement Agent has made any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the offering of the Shares, (iii) no Placement Agent will have any responsibility to Subscriber with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Business Combination or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the SPAC, or the offering of the Shares, and (iv) no Placement Agent shall have any liability or obligation (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the offering of the Shares. Subscriber acknowledges that the Placement Agents, affiliates of the Placement Agents and their respective officers, directors, employees and representatives may have acquired non-public information with respect to the Issuer or the SPAC which Subscriber agrees, subject to applicable law, need not be provided to it. 2.1.15 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (MedTech Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ AERKOMM and agrees with the Company and ~~Holdings~~ AERKOMM as follows: 2.1.1 If Subscriber is an entity, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated ~~decision~~ decision-making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of ~~January 14~~October 6, ~~2022~~ 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-~~261822~~259567) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, ~~and~~ (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and AERKOMM (the “Investor Presentation”), a copy of which was furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, ~~Holdings~~AERKOMM, or a representative of the Company or ~~Holdings~~AERKOMM, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or ~~Holdings~~AERKOMM. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the ~~Company~~Company or AERKOMM. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Company’s Common Stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the ~~Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~Exchan

Appears in 1 contract

Sources: Subscription Agreement (IX Acquisition Corp.)

Appears in 1 contract

Sources: Subscription Agreement (Finance of America Companies Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ Grove to issue the ~~Securities to Subscriber~~applicable Subscribed Shares and the Warrants, Subscriber hereby represents and warrants to ~~the Company~~ Grove and ~~Holdings~~ acknowledges and agrees with ▇▇▇▇▇, as of the ~~Company~~ date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 1.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 1.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of Grove, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 1.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 1.1.4. Subscriber (i) is ~~a “qualified institutional buyer”~~ (~~as defined in Rule 144A under the Securities Act~~a) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act)”) and (b) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the Securities ~~only~~ for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view ~~to,~~ to any distribution of the Securities in any manner that would violate the securities laws of the United States or ~~for offer or sale in connection with~~any other applicable jurisdiction and (iii) is not acquiring the Securities with a view towards, any distribution thereof in violation of the Securities ~~Act~~ Act; provided, however, that by making the representations herein, Subscriber does not agree to hold any of the Securities or any other securities for any minimum or other specific term and reserves the ~~laws~~ right to dispose of the Securities at any ~~jurisdiction (and shall provide~~ time in accordance with or pursuant to a registration statement or an exemption under the ~~requested information set forth on Schedule A)~~Securities Act. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Securities. ~~2.1.5~~ 1.1.5. Subscriber understands ~~and agrees~~ that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ issuer of such Securities or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ (including Rule 144), and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the Securities shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale as set forth in this Subscription Agreement). Subscriber ~~understands and agrees~~ acknowledges that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that unless the resale of the Securities is covered by an effective registration statement under the Securities Act, the Securities will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has determined based on its own independent review and such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax professional advice as ~~Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that~~ it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined deems appropriate that the Securities are a suitable investment for ~~Subscriber~~ Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Securities, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Grove. 1.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Company~~Securities from Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by Grove or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 1.1.7. In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of Grove contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone, other than Grove and their respective representatives concerning Grove, Securities or the offer and sale of the Securities. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Securities, including with respect to Grove. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of Grove, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 1.1.8. Subscriber became aware of this offering of the Securities solely by means of direct contact between Subscriber and Grove or one of their respective representatives. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any general solicitation. Subscriber acknowledges that Grove represents and warrants that the Securities were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act. 1.1.9. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of ~~this investment~~an investment in the Securities. ~~2.1.13~~ 1.1.10. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1,~~ 1.1.11. Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (is not a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ foreign person (as defined ~~below), except, if applicable, for~~ in 31 C.F.R. Part 800.224) in which the national or subnational governments of a ~~Disqualification Event~~ single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in Grove as a result of the purchase and sale of Securities hereunder such that a declaration to ~~which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ the ~~Company promptly in writing~~ Committee on Foreign Investment in the ~~event~~ United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Grove from and after the Closing as a ~~Disqualification Event becomes applicable to Subscriber or any~~ result of ~~its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes~~ the purchase and sale of ~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under~~ the Securities ~~Act~~hereunder. ~~2.1.16~~ 1.1.12. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on ~~the Company~~Grove. ~~2.1.17 Except as expressly disclosed~~ 1.1.13. Subscriber agrees that, from the date of this Subscription Agreement until the Closing, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in ~~a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission~~ any Short Sales with respect to ~~the beneficial ownership of the~~ securities of Grove. For the ~~Company prior to the date~~ purposes hereof, ~~Subscriber is not currently (and at~~ “Short Sales” shall mean all ~~times through Closing will refrain from being or becoming) a member of a~~ “~~group~~short sales” ~~(within the meaning of Section 13(d)(3) or Section 14(d)(2) of~~ as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but shall not include pledging in the ordinary course of business as part of prime brokerage arrangements. Notwithstanding the foregoing, (a) nothing herein shall prohibit any entities under common management or that share an investment advisor with Subscriber (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales and (b) in the case of a Subscriber that is a multimanaged investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets, this Section 2.1.13 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement. For the avoidance of doubt, this Section 2.1.13 shall not apply to (i) any sale (including the exercise of any redemption right) of securities of Grove (A) held by Subscriber, its controlled affiliates or any ~~successor provision~~person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (B) purchased by Subscriber, its controlled affiliates or any person or entity acting ~~for~~ on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the ~~purpose~~ execution of ~~acquiring~~this Subscription Agreement or (ii) ordinary course, ~~holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~non-speculative hedging transactions. ~~2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~

Appears in 1 contract

Sources: Subscription Agreement (Grove Collaborative Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated ~~herein do not and~~ hereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or~~ materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any ~~statute~~ law or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would ~~reasonably be expected~~ materially affect the legal authority of Subscriber to ~~have a Subscriber Material Adverse Effect~~comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AA hereto, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of any such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber (other than to the Company or any investment fund or managed account managed by the same investment adviser as Subscriber or having the same general partner or an affiliated general partner and which investment fund or managed account shall be deemed to make the same representations as Subscriber hereunder (each, a “Subscriber Affiliate”)), absent an effective registration statement under the Securities Act with respect to the ~~Securities except (i)~~ Shares or an opinion of counsel reasonably satisfactory to the Company ~~or a subsidiary thereof, or (ii) pursuant to another~~ that such registration statement is not required and an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber ~~understands~~ acknowledges that it has been advised to consult ~~legal,~~ legal counsel and tax and accounting ~~counsel~~ advisors prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber ~~understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further~~ acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by or on behalf of the ~~Company~~ Company, QualTek or their respective affiliates or any of ~~its officers~~ their respective subsidiaries, control persons, officers, directors, employees, partners, agents or ~~directors~~representatives or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company included in this Subscription Agreement. Subscriber hereby expressly and irrevocably acknowledges and agrees that, ~~and Subscriber is~~ with respect to the transactions contemplated hereby, he, she or it has not ~~relying~~ relied on any other representations, ~~warranties~~ warranties, covenants, agreements or ~~covenants~~ statements (including by omission) and all other ~~than those expressly set forth in this Subscription Agreement~~purported representations, warranties, covenants, agreements or statements (including by omission) are hereby disclaimed by Subscriber with respect to the transactions contemplated hereby. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and upon the ~~representations, warranties,~~ representations and ~~covenants~~ warranties of the Company ~~contained~~ made in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, and ask questions with respect to, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and has made its own assessment and is satisfied concerning the relevant ~~tax~~ tax, legal and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and ~~agrees~~ warrants that Subscriber ~~and its professional advisor(s), if any, have~~ has had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information regarding the Company, QualTek and the Transactions, as Subscriber ~~and its professional advisor(s), if any, have~~ has deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber ~~further~~ acknowledges that no disclosure or any information received by Subscriber has been prepared by any of ▇▇▇▇ Capital Partners, LLC or ▇▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to Subscriber by the Company. Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the ~~Disclosure Documents is subject to change~~Shares, ~~and that any changes~~ including information related to the ~~information contained in~~ Company, the ~~Disclosure Documents, including any changes based on updated information or changes in terms~~ Shares and the offer and sale of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely (ai) by means of direct contact from ~~the Company, Holdings,~~ one or ~~a representative~~ both of the ~~Company or Holdings,~~ Placement Agents or (bii) directly from the Company as a result of a pre-~~existing~~exiting, substantial relationship with the Company, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the ~~Company~~ Placement Agents or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (iA) were not offered by any form of general solicitation or general advertising and (iiB) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any other federal, state or foreign securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated hereby. 2.1.12 Subscriber understands and ~~agrees~~ acknowledges that no ~~federal~~ federal, state or ~~state~~ other agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”~~) or~~ ), in any Executive Order issued by the President of the United States and administered by ~~OFAC~~ OFAC, or in any other list of prohibited or restricted parties promulgated by OFAC, the Department of Commerce, or the Department of State (“~~OFAC List~~Sanctions Lists”), or a person or entity prohibited by or restricted under any OFAC sanctions program, (ii) ~~owned~~ greater than 50% owned, directly or indirectly, or controlled by, or acting on behalf of, ~~a person,~~ one or more persons that is are named on ~~an OFAC~~ any Sanctions List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Myanmar, Venezuela, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a “Designated ~~National~~ National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents ~~that, to the extent required, it, directly or indirectly through a third party administrator,~~ that it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the ~~OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Sanctions Lists. Subscriber further represents and warrants ~~that, to the extent required, it, directly or indirectly through a third-party administrator,~~ that it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally ~~derived~~derived and were not obtained, directly or indirectly, from a Prohibited Investor. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not ~~currently (and at all times through Closing will refrain from being or becoming) a member of~~ a “~~group~~foreign person,” ~~(within the meaning of~~ “foreign government,” or a “foreign entity,” in each case, as defined in Section ~~13(d)(3) or Section 14(d)(2)~~ 721 of the ~~Securities Exchange~~ Defense Production Act of ~~1934~~1950, as ~~amended~~ amended, including, without limitation, all implementing regulations thereof (the “~~Exchange Act~~DPA”). Subscriber is not controlled, in whole or ~~any successor provision) acting for~~ in part, by a “foreign person,” as defined in the ~~purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18~~ DPA. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire substantial interest in the Company as a result of the sale of securities to Subscriber such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of securities hereunder. 2.1.15 Subscriber will have sufficient available funds at the Closing to pay the Purchase Price pursuant to Section 3.1. 2.1.16 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. 2.1.17 Subscriber acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. 2.1.18 Subscriber acknowledges that the Placement Agents (i) have not provided Subscriber with any information or advice with respect to the Shares, (ii) have not made any representation or warranty, express or implied as to the Company, QualTek, their credit quality, the Shares, the Transactions or the transactions contemplated hereby, or Subscriber’s purchase of the Shares, (iii) have not acted as Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Shares

Appears in 1 contract

Sources: Subscription Agreement (Roth CH Acquisition III Co)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases ‎(i) and ‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, 23andMe, or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, 23andMe and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and 23andMe including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the ~~information contained~~ Placement Agents in connection with Subscriber’s due diligence review of the ~~Disclosure Documents~~ offering of the Subscribed Shares and the Issuer. 2.1.9. Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is ~~subject~~ acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to ~~change~~Subscriber (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, 23andMe or the Transactions, and (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions. Subscriber further acknowledges that Citigroup Global Markets Inc. is acting as financial advisor to 23andMe in connection with the Transactions. Issuer and 23andMe are solely responsible for paying any ~~changes~~ fees or other commission owed to the ~~information contained~~ Placement Agents in connection with the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationTransactions. ~~2.1.9~~ 2.1.10. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.11. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.13. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.14. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.15. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.16. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 Subscriber will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.17. No broker, finder or other financial consultant has acted on behalf of Su

Appears in 1 contract

Sources: Subscription Agreement (VG Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into or timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), Governmental Authority having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 1 Note to Draft: Bracketed text in this Section 1 to be included in Sponsor Subscription Agreement only. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI hereto, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI hereto)~~. If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber understands and agrees that the ~~Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants ~~and~~ or agreements made to Subscriber by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC or Blackstone Securities Partners L.P. (collectively, the ~~Company~~ “Placement Agents”), the Issuer, Altus, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transaction or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement,~~ made by the Issuer and ~~Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 ~~Subscriber represents~~ Subscriber’s acquisition and ~~warrants that (i) it is~~ holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or a violation of any applicable ~~similar law~~Similar Law (as defined below). 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to, and has had an adequate opportunity to review, such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Altus and the Transactions, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has received access to, and has had ~~the~~ an adequate opportunity to review ~~the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”):~~ (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed~~ Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (~~File Nos. 333-261822~~ii) a presentation with respect to Altus provided to Subscriber by the Issuer (the “~~Prospectus~~Target Disclosure”)~~, (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber further acknowledges that ~~the~~ any information contained in ~~the~~ Target Disclosure ~~Documents~~ is preliminary and subject to change, and that any changes to the information contained in the ~~Disclosure Documents~~Target Disclosure, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder, except as otherwise provided herein. None of the Placement Agents or any of their respective affiliates has made or makes any representation as to the Issuer, Altus or the quality or value of the Shares, and ~~that~~the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Issuer or Altus which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber, none of the Placement Agents or any of their respective affiliates has acted or shall be construed to have acted as a financial advisor or fiduciary to Subscriber. Subscriber agrees that (a) none of the Placement Agents will have any responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with this offering or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, Altus or the offering, and (b) no Placement Agent shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in ~~purchasing~~ respect of the ~~Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~offering. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company,~~ between Subscriber and the ~~Securities~~ Issuer or its representatives. The Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representatives. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and acknowledges that it~~ (i) if not an individual, is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares. If the Subscriber is not an individual, Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 ~~Subscriber represents and acknowledges that~~ Alone, or together with any professional advisor(s), Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 ~~Subscriber represents and warrants that~~ Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable ~~law~~laws. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, ~~it, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, If Subscriber is ~~not currently~~ (~~and at all times through Closing will refrain from being or becoming~~i) ~~a member of a~~ an “~~group~~employee benefit plan” (within the meaning of Section ~~13(d)(3~~3(3) of ERISA that is subject to Title I of ERISA, (ii) a plan, individual retirement account or other arrangement that is subject to Section 4975 of the Code, (iii) an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to Title I of ERISA or Section ~~14(d)(2)~~ 4975 of the ~~Securities Exchange Act~~ Code but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ~~1934~~ERISA or the Code (collectively, ~~as amended (the~~ “~~Exchange Act~~Similar Laws”), or (iii) an entity whose underlying assets are considered to include “plan assets” of any ~~successor provision) acting for the purpose of acquiring, holding or disposing of equity securities~~ of the ~~Company~~ foregoing described in clauses (~~within~~ i), (ii) and (iii) subject to the ~~meaning~~ fiduciary or prohibited transaction provisions of ~~Rule 13d-5(b)(1~~ERISA, Section 4975 of the Code or Similar Laws (each of the foregoing described in clauses (i), (ii), (iii) ~~under~~ and (iv) referred to as a “Plan”), Subscriber represents and warrants that it has not relied on the ~~Exchange Act). 2.1.18 No foreign person~~ Issuer or any of its affiliates (~~as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~

Appears in 1 contract

Sources: Subscription Agreement (CBRE Acquisition Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ Newco to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to Rigel, Target Companies, Sellers, Newco and Citigroup Global Markets Inc. (“Citi”) and H&P Advisory Ltd (“H▇▇▇▇▇” and, together with Citi, the ~~Company~~ “Placement Agents”) and ~~Holdings~~ Rand Merchant Bank, a division of Firstrand Bank Limited (“RMB”) and acknowledges and agrees with R▇▇▇▇, Newco, the ~~Company~~ Target Companies, the Sellers, the Placement Agents and ~~Holdings~~ RMB, as applicable, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of Rigel and Newco, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a~~501(a)(1), (2), (3), or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account and (iii) is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer or institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands that the offering of the Shares hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) ~~to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that~~ is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to an institutional account as defined in FINRA Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”4512(c), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, including Subscriber’s participation in the purchase of the Shares, in each case, satisfying the applicable requirements set forth on Schedule I, and has the ability to bear the economic risks of an investment in the Shares and can afford a complete loss of such investment, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Shares and participation in the Transactions (i) are fully consistent with its financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to it, (iii) have been duly authorized and approved by all necessary action and (iv) is a fit, proper and suitable investment, notwithstanding the substantial risks inherent in investing in or holding the Shares. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 If resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as amended (the “EU Prospectus Regulation”) and is not (a) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (b) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of M▇▇▇▇ ▇▇. 2.1.7 If resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of the EU Prospectus Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 and an investment professional falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (as amended) (the “Financial Promotion Order”) or a high net worth company or other person who falls within Article 49(2)(a) to (d) of the Financial Promotion Order, or a person to whom an invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Promotion Order) in connection with the issue or sale of any securities may otherwise lawfully be communicated or caused to be communicated. 2.1.8 If resident in South Africa, Subscriber (a) falls within the exemptions set out in section 96 (1)(a) or (b) of the South African Companies Act No 71 of 2008 (as amended) (the “South African Companies Act”) and as such, accepts that the offer by N▇▇▇▇ does not constitute an “offer to the public” as contemplated in the South African Companies Act, (b) accepts and understands that as a result of the Shares being offered in a transaction not involving any public offering within the meaning of the South African Companies Act, no prospectus (as contemplated in the South African Companies Act) has been or will be filed with or approved by the Companies and Intellectual Property Commission in respect of the offering of the Shares and (c) to the extent required, has obtained all the necessary regulatory approvals (including, but not limited to exchange control approvals from its authorised dealer and/or from the South African Reserve Bank) to partake in the offering of the Shares. 2.1.9 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Shares have not been registered under the Securities Act or the laws of any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Newco or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States and any other applicable jurisdictions, and that any certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges and agrees that the Shares will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares. 2.1.10 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from Newco. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by or on behalf of Newco, Rigel, the Sellers, the Target Companies, the Placement Agents, RMB or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements of Rigel, Newco, the Sellers and Sponsor expressly set forth in this Subscription Agreement. 2.1.11 Subscriber represents and ~~acknowledges~~ warrants that ~~Subscriber has such knowledge~~ its acquisition and ~~experience in financial and business matters as to be capable of evaluating the merits and risks~~ holding of the ~~investment~~ Shares will not constitute or result in ~~the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are~~ a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits non-exempt prohibited transaction under Section 406 of the ~~offering~~ Employee Retirement Income Security Act of ~~the Securities or made any findings or determination~~ 1974, as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership 4975 of the ~~securities~~ Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), or any ~~successor provision) acting~~ applicable similar law. 2.1.12 No disclosure or offering document has been prepared in connection with the offer and sale of the Shares by any of the Placement Agents, RMB or their respective affiliates. In making its decision to purchase the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants of Rigel, Newco, the Sellers and the Sponsor set forth in this Agreement and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information or advice provided by or on behalf of the Placement Agents, RMB, the Sellers, Sponsor or the Target Companies concerning Rigel, Newco, the Sellers, Sponsor or the Target Companies for the ~~purpose of acquiring, holding or disposing of equity securities~~ offer and sale of the ~~Company (within~~ Shares. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~meaning of Rule 13d-5(b)(1) under~~ Shares, including with respect to Rigel, Newco, the ~~Exchange Act~~Target Companies and the Transactions. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Transactions, have had the full opportunity to ask such questions, including on the financial information, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber has made its own assessment, conducted and completed its own independent due diligence and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Shares. ~~2.1.18 No foreign~~ 2.1.13 Subscriber acknowledges and agrees that (i) it has been informed that each of the Placement Agents is acting solely as R▇▇▇▇’▇ placement agent in connection with the Transactions and that RMB is acting as financial advisor to the Target Companies and that neither is acting as an underwriter or in any other capacity in connection with the offering and, other than RMB with respect to the Target Companies, is not and shall not be construed as a fiduciary or financial advisor for Subscriber, Rigel, the Sellers, the Target Companies or any other person in connection with the Transactions and all of the information provided to the Subscriber constitutes factual information as contemplated in section 1(3)(a) of the South African Financial Advisory and Intermediary Services Act No. 37 of 2002 (as amended) (the “FAIS Act”) and does not constitute the furnishing of, any “advice” as defined in ~~31 C.F.R. Part 800.224) in which~~ the ~~national or subnational governments~~ South African Financial Markets Act No. 19 of ~~a single foreign state have a substantial interest~~ 2012 (as deamended) and/or FAIS Act and any of the information provided in respect of the Shares should not be construed as an express or implied recommendation, guidance or proposal that any particular transaction is appropriate to the particular investment objectives, financial situations or needs of the Subscriber, and none of the information provided in respect of the offering of the Shares should be construed as constituting the canvassing for, or marketing or advertising of, financial services in the Republic of South A▇▇▇▇▇.▇▇ terms of the FAIS Act(ii) the Placement Agents and RMB have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber and (iii) the Placement Agents and RMB will not have any responsibility with respect to (a) any representations, warranties or agreements made by any person or entity under or in connection with the execution, delivery and performance of this Subscription Agreement, or the execution, legality, validity or enforceability (with respect to any person) thereof, (b) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning Rigel, Newco or the Target Companies, or (c) the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of Rigel, Newco or the Target Companies pursuant to this Subscription Agreement or in connection with the Transactions. Each of the Placement Agents and RMB may rely upon these representations and warranties of Subscriber. R▇▇▇▇ is solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. 2.1.14 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and Rigel, Newco, the Sellers, the Target Companies or their respective representatives (including

Appears in 1 contract

Sources: Subscription Agreement (Rigel Resource Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement has been duly authorized, executed and delivered by the ~~signature on~~ Issuer, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, ~~charge~~ charge, or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license~~ license, or other agreement or instrument to which Subscriber or any of its subsidiaries, if any, is a ~~party~~ party, or by which Subscriber or any of its subsidiaries, if any, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, if any, is subject, which would reasonably be expected to have ~~a material~~ an adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under, this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, if any, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Subscription Agreement. 2.1.5 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) acquiring ~~all of~~ its entire beneficial ownership in the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~iv) is acquiring the ~~Securities~~ shares for investment purposes only and is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.6 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.7 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act and that the Issuer is not required to register the Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by ~~Subscriber absent~~ Subscriber, unless the resale of the Shares has been registered pursuant to an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the ~~Company~~ Issuer, the Company, the Placement Agent (as defined below) or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants~~ covenants, and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.9 Subscriber represents and warrants that it (i) it is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.10 If Subscriber is an employee benefit plan that is subject to Title 1 of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of ERISA the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.11 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer, the Company ~~contained in this Subscription Agreement~~or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had~~ reviewed the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC ~~Document~~ Documents (as defined below~~) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~). Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed reasonably necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber ~~further~~ acknowledges that the Placement Agent (as defined below) and its respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to the Subscriber by the Issuer and/or the Company. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any Placement Agent or any of the Placement Agents’ respective affiliates with respect to its decision to invest in the ~~Disclosure Documents is subject to change~~Shares, ~~and that any changes~~ including information related to the ~~information contained in~~ Issuer, the ~~Disclosure Documents~~Company, ~~including any changes based on updated information or changes in terms~~ the Shares and the offer and sale of the ~~Transaction~~Shares, ~~shall~~ (ii) none of the Placement Agents or any of their respective affiliates has prepared any disclosure or offering document in ~~no way affect~~ connection with the offer and sale of the Shares and (iii) in connection with the issue and purchase of the Shares, none of the Placement Agents has acted as the Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentationfinancial advisor or fiduciary. ~~2.1.9~~ 2.1.12 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Company represents and warrants that the Securities~~ it has not become aware of this offering (i) ~~were not offered~~ by any form of general solicitation or general ~~advertising and~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, or (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act,~~ Act or any state securities laws. ~~2.1.10~~ 2.1.13 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, ~~legal~~ legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that~~ 2.1.14 Alone, or together with any professional advisor(s), if any, Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.15 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.16 Neither Subscriber ~~represents and warrants that~~ nor any of its directors, officers, employees or other persons acting on behalf of Subscriber for the purposes of this Subscription Agreement is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, ~~provided~~ that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required~~ 2.1.17 If Subscriber is an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section ~~3.1, Subscriber will have sufficient immediately available funds to pay~~ 4975 of the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber Code or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity an employee benefit plan that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that neither the Issuer nor any of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none

Appears in 1 contract

Sources: Subscription Agreement (Isleworth Healthcare Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares and Warrants to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole,~~ whole (a “Subscriber Material Adverse Effect”) or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber ~~(i)~~ is ~~a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”)~~, in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares and Warrants only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares or Warrants as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares or Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares or Warrants. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares and Warrants have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares or Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares and Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares and Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares or Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares and Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares or Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares and Warrants directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that ~~(i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii)~~ its acquisition and holding of the ~~Securities~~ Shares and Warrants will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares and Warrants, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Subscriber represents that it has reviewed presentations or other marketing materials (each, together with amendments or supplements thereto, a “Memorandum” and collectively, the ~~representations, warranties, and covenants~~ “Memoranda”) describing the Company (including the business of the ~~Company contained in this Subscription Agreement. Subscriber~~ Seller) and acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyWarrants, including ~~(collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed~~ with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by respect to the Company ~~with~~ and the ~~Commission~~Transaction. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to visit Seller’s mine site, to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents~~ Shares and Warrants and no statement of printed material which is ~~subject to change, and that any changes~~ contrary to the ~~information contained in the Disclosure Documents, including any changes based~~ Memoranda has been made or given to Subscriber by or on ~~updated information or changes in terms~~ behalf of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationCompany. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares and Warrants solely ~~(a)~~ by means of direct contact from BMO Capital Markets Corp., as placement agent (the ~~Company, Holdings~~“Placement Agent”), or ~~a representative of the Company or Holdings, or (b)~~ directly from the Company as a result of a pre-existing, ~~substantial~~ substantive relationship with the Company, and the ~~Securities~~ Shares and Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agent or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares and Warrants, nor were the ~~Securities~~ Shares and Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Shares and Warrants (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, including, without limitation, the Placement Agent, except for the statements, representations and warranties contained in the private placement documentation. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares and Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares and Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and Warrants and determined that the ~~Securities~~ Shares and Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or Warrants or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares and Warrants were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the ~~Purchase Price~~ applicable purchase price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule ~~506(d)(1)(i)-(viii~~506(d)(1)(i-viii) ~~under~~ of the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a ~~direct~~ beneficial owner of Subscriber’s securities for purposes of Rule 506(d) ~~under~~ of the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription/Backstop Agreement (Mudrick Capital Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Subscribed Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of ~~others,~~ others or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Subscribed Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Magnet, Merger Sub or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and~~ Subscriber. Without limiting the ~~representations, warranties, and covenants~~ generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, Magnet and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationSubscribed Shares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Subscribed Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subscribed Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Subscribed Shares and determined that the ~~Securities~~ Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Subscribed Shares. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder. 2.1.17 Unless this Agreement is terminated prior to the Closing Date in accordance with its terms, on the Closing Date Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1 and will have total liquid assets and net assets in excess of the Purchase Price. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement has been duly authorized, executed and delivered by the ~~signature on~~ Issuer, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, ~~charge~~ charge, or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license~~ license, or other agreement or instrument to which Subscriber or any of its subsidiaries, if any, is a ~~party~~ party, or by which Subscriber or any of its subsidiaries, if any, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, if any, is subject, which would reasonably be expected to have ~~a material~~ an adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under, this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect;~~ subsidiaries, if any, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, if any, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Subscription Agreement. 2.1.5 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~iv) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.6 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.7 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.8 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the ~~Company~~ Issuer, the Company, or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants~~ covenants, and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.9 Subscriber represents and warrants that it (i) it is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.10 If Subscriber is an employee benefit plan that is subject to Title 1 of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law~~. 2.1.8~~ . In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer, the Company ~~contained in this Subscription Agreement~~or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had~~ reviewed the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC ~~Document~~ Documents (as defined below~~) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~). Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed reasonably necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. ~~2.1.9~~ 2.1.11 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission (as defined below) under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that ~~the Company represents and warrants that the Securities~~ it has not become aware of this offering (i) ~~were not offered~~ by any form of general solicitation or general ~~advertising and~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, or (ii) ~~are not being offered~~ in a manner involving a public offering under, or in a distribution in violation of, the Securities ~~Act,~~ Act or any state securities laws. ~~2.1.10~~ 2.1.12 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, ~~legal~~ legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11 Subscriber represents and acknowledges that~~ 2.1.13 Alone, or together with any professional advisor(s), if any, Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.14 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.15 Neither Subscriber ~~represents and warrants that~~ nor any of its directors, officers, employees or other persons acting on behalf of Subscriber for the purposes of this Subscription Agreement is ~~not~~ (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, ~~provided~~ that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required~~ 2.1.16 If Subscriber is an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section ~~3.1~~4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted as the Plan’s fiduciary, or has been relied on ~~behalf~~ for advice, with respect to its decision to acquire and hold the Shares, and none of ~~Subscriber in connection~~ the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with ~~this Subscription Agreement~~ respect to any decision to acquire, continue to hold, or transfer the ~~transactions contemplated hereby in such a way as to create any liability on the Company~~Shares. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, ~~holding~~ holding, or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 ~~No foreign~~ The Subscriber hereby acknowledges and agrees that it will not, nor will any person (acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in ~~31 C.F.R. Part 800.224)~~ Rule 200 of Regulation SHO under the Exchange Act, including all types of direct and indirect stock pledges (other than pledges in ~~which~~ the ~~national~~ ordinary course of business as part of prime brokerage or ~~subnational governments of~~ other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a ~~single foreign state have a substantial interest (as de~~total return basis), and sales and other transactions through non-U.S. br

Appears in 1 contract

Sources: Subscription Agreement (YD Biopharma LTD)

Appears in 1 contract

Sources: Sponsor Subscription Agreement

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (iic) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~d) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber (ie) is (1) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (2) an Institutional Account as defined in FINRA Rule 4512(c) and (3) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (iib) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (c) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (id) to the ~~Company~~ Issuer or a subsidiary thereof, (e) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iif) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Springbig, or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone, other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, Springbig and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that the information contained in the Disclosure Documents~~ represents and warrants it is ~~subject to change~~relying exclusively on its own sources of information, investment analysis and ~~that any changes~~ due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Transactions, the ~~Disclosure Documents~~Subscribed Shares and the business, ~~including any changes based on updated information or changes in terms~~ condition (financial and otherwise), management, operations, properties and prospects of the ~~Transaction~~Issuer and Springbig including but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (ig) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (ivh) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (vi) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.14. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the Subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any “short sales” and (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Subscribed Shares covered by this Subscription Agreement.

Appears in 1 contract

Sources: Subscription Agreement (Tuatara Capital Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber and to induce the Sponsor to transfer the Transferring Warrants to the Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer, Kismet and ~~Holdings~~ Sponsor and acknowledges and agrees with the ~~Company~~ Issuer, Kismet and ~~Holdings~~ Sponsor as follows: ~~2.1.1~~ a) Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ Kismet and Sponsor, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ d) Subscriber is either a U.S. investor or non-U.S. investor and: i) If a U.S. investor, (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities ~~Act~~Act (“Rule 144A”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an “accredited investor” (each as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act and Subscriber further represents that Subscriber does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations in the ~~laws~~ Shares to such person or to any third person, with respect to any of ~~any jurisdiction (and shall provide~~ the Shares. Subscriber has provided the Company with the requested information ~~set forth~~ on Schedule A)I following the signature page hereto and the information contained therein is accurate and complete. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c). Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). ~~2.1.5~~ ii) If a non-U.S. investor, understands that the sale of the Shares is made pursuant to and in reliance upon Regulation S promulgated under the Securities Act (“Regulation S”). The Subscriber is not a U.S. Person (as defined in Regulation S), and it is acquiring the Shares in an offshore transaction in reliance on Regulation S. The Subscriber understands and agrees that Shares sold pursuant to Regulation S may be subject to restrictions thereunder, including compliance with the ~~Securities~~ distribution compliance period provisions therein. Subscriber is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c). Subscriber acknowledges that the offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). e) Subscriber (i) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), and (ii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”). f) Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ g) Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, Kismet, Sponsor, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. The Subscriber acknowledges that certain information provided to the Subscriber was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. ~~2.1.7~~ h) Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ i) In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s, Kismet’s and Sponsor’s representations, ~~warranties~~warranties and agreements in Sections 3.2, 3.3 and ~~covenants~~ 3.4 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer, Kismet and Sponsor concerning the Issuer, Kismet or Sponsor or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Kismet, Sponsor, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by Kismet, Sponsor and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. ~~The~~ Subscriber ~~further~~ acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. ~~2.1.9~~ j) Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company~~Sponsor, ~~Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company~~ Kismet as a result of a pre-~~existing~~existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) preceding the filing of the Registration Statement by the Issuer, ~~substantial relationship~~ with the ~~Company~~Issuer, Sponsor, Kismet or their representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Sponsor, Issuer or ~~Holdings~~Kismet. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered to it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, or directed selling efforts (within the meaning of Regulation S under the Securities Act) and (ii) are not being offered to it in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ k) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares and (B) the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ l) Subscriber represents and acknowledges that ~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities~~Subscriber, alone, or together with any professional advisor(s), has analyzed and ~~fully~~ considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ m) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ n) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of of, Cuba, Iran, North Korea, Syria, Crimea, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, ~~provided~~ that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed ~~for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and~~ to ~~otherwise~~ ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors (if it has investors) against the OFAC Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On~~ o) If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber Code or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity an employee benefit plan that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or o

Appears in 1 contract

Sources: Subscription Agreement (Kismet Acquisition One Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Purchased Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the ~~consummation~~ purchase by Subscriber of the ~~transactions contemplated herein do not and~~ Purchased Securities will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a~~ prevent or delay Subscriber’s timely performance of any of its material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) subject to receipt of required regulatory approvals, if any, result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the Purchased Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Purchased Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Purchased Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Purchased Securities. Subscriber understands and acknowledges that the purchase of the Purchased Securities pursuant to this Agreement meets an exemption from filing under FINRA Rule 5123. 2.1.5 Subscriber understands ~~and agrees~~ that the Purchased Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Purchased Securities have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the Purchased Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Purchased Securities ~~except (i) to the Company~~ or ~~a subsidiary thereof, or (ii) pursuant to another~~ an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the Purchased Securities shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the Purchased Securities will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act.~~ Act (“Rule 144”) until at least one year from the filing by the Company of the “Form 10 information.” Subscriber understands and agrees that the Purchased Securities will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Purchased Securities and may be required to bear the financial risk of an investment in the Purchased Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the Purchased Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Purchased Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Purchased Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Purchased Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the Company contained in this Subscription Agreement. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the Purchased Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Purchased Securities. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as the Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary for the Subscriber to make an investment decision with respect to the Purchased Securities. The Subscriber ~~further~~ acknowledges that it has not relied on any statements or other information provided by ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPM”) and Global Leisure Partners LLC (“GLP” and, together with JPM, the ~~information contained~~ “Placement Agents”) or any of the Placement Agents’ affiliates with respect to its decision to invest in the ~~Disclosure Documents is subject to change~~Purchased Securities, ~~and that any changes~~ including information related to the ~~information contained in~~ Company, the ~~Disclosure Documents, including any changes based on updated information or changes in terms~~ Purchased Securities and the offer and sale of the ~~Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the~~ Purchased Securities~~, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the Purchased Securities ~~solely (a)~~ by means of direct contact from the ~~Company~~Placement Agents in the case of institutional accredited investors, ~~Holdings, or a representative of the Company or Holdings, or (b)~~ and/or directly from the Company or ▇▇▇▇▇▇▇ Group as a result of a pre-existing, substantial relationship with the ~~Company~~Company or ▇▇▇▇▇▇▇ Group, and the Purchased Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the Placement Agents, the Company or ~~Holdings~~▇▇▇▇▇▇▇ Group. Subscriber did not become aware of this offering of the Purchased Securities, nor were the Purchased Securities offered to Subscriber, by any other means. Subscriber acknowledges that (a) the Placement Agents have not acted as its financial advisor or fiduciary, (b) each of the Placement Agents is acting solely as placement agent to the Company and is not acting as an underwriter or in any other capacity or as a fiduciary for the Company, ▇▇▇▇▇▇▇ Group or any other person or entity in connection with the Transaction and (c) none of the Placement Agents or any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Purchased Securities. Subscriber acknowledges that the Company represents and warrants that the Purchased Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges and agrees that (a) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transaction, (b) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transaction or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company, ▇▇▇▇▇▇▇ Group or the Transaction, and (c) the Placement Agents will have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transaction. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Purchased Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Purchased Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Purchased Securities hereunder meets (i) ~~is a sophisticated investor~~the exemptions from filing under FINRA Rule 5123, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of~~ institutional customer exemption under FINRA Rule 2111(b) and (iii) the ~~Securities~~institutional account exemption under FINRA Rule 4512(c). ~~2.1.11~~ 2.1.12 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Purchased Securities, has adequately analyzed and fully considered the risks of an investment in the Purchased Securities and determined that the Purchased Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Purchased Securities or made any findings or determination as to the fairness of this investment. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Purchased Securities were legally derived. ~~2.1.14 On~~ 2.1.15 Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the Purchase Price pursuant to Section 3.1. ~~2.1.15~~ 2.1.16 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company2.1.17 [Reserved]. ~~2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such~~ 2.1.18 Subscriber ~~with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof~~acknowledges and understands that, ~~Subscriber~~ if it is not ~~currently (and at all times through Closing will refrain from being or becoming) a member of a~~ an institutional “~~group~~accredited investor” (within the meaning of ~~Section 13(d)(3~~Rule 501(a)(1), (2), (3), (7) (8), (9), (12) or ~~Section 14(d)(2) of the Securities Exchange Act of 1934, as amended~~ (~~the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1~~13) under the ~~Exchange~~ Securities Act), only GLP is acting as the Company’s Placement Agent with respect to such offers and sales. ~~2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~

Appears in 1 contract

Sources: Subscription Agreement (Aldel Financial Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ ProSomnus and agrees with the Company and ~~Holdings~~ ProSomnus as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of ~~January 14~~June 10, ~~2022~~ 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-~~261822~~255174) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, ~~and~~ (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and ProSomnus (the “Investor Presentation”), a copy of which was furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, ~~Holdings~~ProSomnus, or a representative of the Company or ~~Holdings~~ProSomnus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or ~~Holdings~~ProSomnus. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Company’s Common Stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign ~~person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~pe

Appears in 1 contract

Sources: Subscription Agreement (ProSomnus, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 Assuming the accuracy of the Company’s representations ~~and warranties~~ andwarranties as set forth in Section 2.2 hereof, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 The Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of ~~January 14~~July 16, ~~2022~~ 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-~~261822~~256578) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, ~~and~~ (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and Nauticus (the “Investor Presentation”), a copy of which will be furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Coastal Equities, Inc. (the “Placement Agent”) or any of the Placement Agent’s affiliates with respect to its decision to invest in the Securities, including information related to the Company, Nauticus, the Securities and the offer and sale of the Securities, (ii) neither the Placement Agent, nor any of the Placement Agent’s affiliates has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Placement Agent nor any of the Placement Agent’s affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Placement Agent nor any of the Placement Agent’s affiliates has made or makes any representation as to the Company, Nauticus or the quality or value of the Securities and the Placement Agent and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not be provided to it. Subscriber agrees the Placement Agent shall not be liable to Subscriber for any action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the Securities. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Placement Agent, the Company, ~~Holdings,~~ Nauticus or a representative of the Placement Agent, the Company or ~~Holdings~~Nauticus, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the ~~Company~~ Placement Agent or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agent has not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deappli

Appears in 1 contract

Sources: Subscription Agreement (Cleantech Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company to issue~~ issuance of the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ the Placement Agents and acknowledges and agrees with the Company and ~~Holdings~~ the Placement Agents, as of the date hereof and as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries, (ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (iii) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect; or (iii) result in any violation of any statute or any judgment~~is subject, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that which would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) (a) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act), (b) is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the investors are institutional accredited investors, and under the Securities Act, (c) is an “institutional account” (as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”)), (d) is not a “retail customer” (as defined in Regulation Best Interest promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and (e) is a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including its participation in the Subscription, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares, (iii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer or an institutional accredited investor, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iv) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that ~~it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any~~ the offering of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): Subscribed Shares meets (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission~~ exemptions from filing under clause (~~the “Commission”~~A) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either ~~the Company~~ clause (C) or ~~Holdings. Subscriber did not become aware~~ clause (J) of ~~this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i~~FINRA Rule 5123(b)(1) ~~were not offered by any form of general solicitation or general advertising~~ and (ii) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ the ~~Securities Act, or any state securities laws. 2.1.10~~ institutional customer exemption under FINRA Rule 2111(b). Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subscribed Shares, including those set forth in the investor presentation provided or made available by the Company (as amended and supplemented through the date hereof) and in the SEC Documents (as defined below). Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and ~~Subscriber~~ has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.5. If Subscriber is a resident of or incorporated under or otherwise subject to the securities laws of Canada or any province or territory of Canada (a “Canadian Person”), then, in addition to, and not in lieu of, Subscriber’s representations and warranties pursuant to Section 2.1.4, Subscriber represents and warrants that Subscriber (i) is purchasing the Subscribed Shares as principal for its own account, or is deemed to be purchasing the Subscribed Shares as principal for its own account in accordance with applicable Canadian Securities Laws; and (ii) is an “accredited investor” as defined in National Instrument 45-106 - Prospectus Exemptions (“NI 45-106”) and the Securities Act (Ontario) and the subscriber has properly completed the Accredited Investor Certificate attached hereto as Schedule II indicating the Subscriber is an accredited investor as so defined. 2.1.6. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act or the securities laws of any other jurisdiction. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that the Subscribed Shares (a) will be “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) and accordingly are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws pursuant to registration or exemption therefrom and (b) shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144 and as set forth in Section 7 of this Subscription Agreement). Subscriber acknowledges that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 until October 31, 2024 and that the provisions of Rule 144(i) will generally apply to the Subscribed Shares. Subscriber understands and ~~acknowledges~~ agrees that ~~it (i) is~~ the Subscribed Shares will be subject to the foregoing restrictions and, as a ~~sophisticated investor~~result, ~~experienced in investing in private equity transactions~~ Subscriber may not be able to readily resell the Subscribed Shares and ~~capable of evaluating investment risks independently, both in general and with regard~~ may be required to ~~all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in~~ bear the ~~purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in~~ financial ~~and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks~~ risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and ~~determined~~ such professional advice as it deems appropriate that the ~~Securities~~ Subscribed Shares are a suitable investment for ~~Subscriber~~ Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s ~~investment in the Company~~investment. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.7. If Subscriber ~~understands~~ is a Canadian Person, the Subscriber acknowledges that, notwithstanding anything herein to the contrary, including Section 2.1.6, the Subscribed Shares will be subject to resale restrictions under Canadian Securities Laws (in addition to resale restrictions under United States securities laws) and ~~agrees~~ that ~~no federal~~ the Subscribed Shares will have attached to them, whether through electronic deposit, an ownership statement issued under a direct registration statement system or ~~state agency has passed upon~~ other electronic book-entry system, or ~~endorsed~~ on certificates that may be issued, as applicable, a legend (in addition to any other legends applicable to the ~~merits~~ Subscribed Shares) setting out the resale restrictions under applicable securities legislation substantially in the following form and with the information completed, as applicable: 2.1.8. Subscriber does not have, as of the ~~offering~~ date hereof, and during the 30-day period immediately prior to the date hereof such Subscriber has not, and during the period beginning as of the ~~Securities~~ date hereof until the Closing Date or ~~made~~ the earlier termination of this Subscription Agreement such Subscriber will not have, entered into, any ~~findings~~ “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or ~~determination as~~ short sale positions with respect to the ~~fairness~~ securities of ~~this investment~~the Company. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.9. If Subscriber is ~~not~~ or is acting on behalf of (i) ~~a person or entity named on~~ an employee benefit plan that is subject to Title I of the ~~List~~ Employee Retirement Income Security Act of ~~Specially Designated Nationals and Blocked Persons~~1974, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control as amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) ~~owned~~ a plan, an individual retirement account or ~~controlled by, or acting on behalf of, a person,~~ other arrangement that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership 4975 of the ~~securities~~ Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), ~~or any successor provision~~(iii) ~~acting for the purpose of acquiring, holding or disposing of equity securities of the Company~~ an employee benefit plan (~~within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person~~ such as a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) of ERISA), a church plan (as defined in ~~which~~ Section 3(33) of ERISA) or a non-U.S. plan (as described in Section 4(b)(4) of ERISA)) that is subject to any federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the ~~national~~ Code (collectively, “Similar Laws”) or ~~subnational governments~~ (iv) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in (i), (ii) and (iii) above (each of the foregoing described in (i), (ii) (iii) and (iv) above, a “Plan”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or violate any Similar Laws. 2.1.10. If Subscriber is or is acting on behalf of a ~~single foreign state~~ Plan, Subscriber represents and warrants that none of the Company or any of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares. 2.1.11. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Company contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including Leerink Partners LLC, Guggenheim Securities, LLC and ▇▇▇▇▇ Fargo Securities, LLC (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Company and its representatives concerning the Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, received, reviewed and understood the offering materials made available to them in connection with the Subscription, have had the full opportunity to ask such questions, including on the financial information, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Subscription, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and of the Company. 2.1.12. Subscriber acknowledges and agrees that (i) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Subscription and is not acting as an underwriter or in any other capacity in connection with the Subscription and is not and shall not be construed as a ~~substantial interest~~ fiduciary for Subscriber, the Company or any other person or entity in connection with the Subscription, (~~as de~~ii) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Subscription to Subscriber and such advice or recommendation is not necessary or desired, (iii) the Placement Agents will have no responsibility to Subscriber with respect to any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning, the Company or the Subscription, (iv) the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of the Placement Agents or their respective affiliates, shall have no liability or obligation (including without lim

Appears in 1 contract

Sources: Subscription Agreement (enGene Holdings Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into or timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ Governmental Authority, domestic or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (5), (6), (7) or (9) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI hereto, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI hereto). If ~~the~~ Subscriber is not an ~~entity~~individual, ~~the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants ~~and~~ or agreements made to Subscriber by ▇.▇. ▇▇▇▇▇▇ Securities LLC or ▇▇▇▇▇▇▇▇▇ LLC (together, the ~~Company~~ “Placement Agents”), the Issuer, OfferPad, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents~~ 2.1.7. Subscriber’s acquisition and ~~warrants that (i) it is~~ holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements herein. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to, and has had an adequate opportunity to review, such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, OfferPad and the Transactions, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges ~~that~~ that, as the Subscriber deems necessary, it has ~~had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”):~~ reviewed (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed~~ Issuer’s filings with the Securities and Exchange Commission (the “Commission”) and (~~File Nos. 333-261822~~ii) a presentation with respect to OfferPad provided to Subscriber by the Issuer (the “~~Prospectus~~Target Disclosure”)~~, (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission~~. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) neither of the Placement Agents nor any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation as to the Issuer, OfferPad or the quality or value of the Shares and the Placement Agents and any of their respective affiliates may have acquired non-public information with respect to the Issuer or OfferPad which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber ~~further~~ hereby understands and acknowledges that none of the ~~information contained in~~ Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the ~~Disclosure Documents is subject to change, and that~~ foregoing has made any ~~changes~~ independent investigation with respect to the Issuer, OfferPad or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information ~~contained in~~ supplied to the ~~Disclosure Documents, including any changes based on updated information or changes in terms of~~ Subscriber by the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationIssuer. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company~~Issuer or its representatives, ~~Holdings, or a representative of~~ including the ~~Company or Holdings, or (b) directly from the Company as a result of~~ Placement Agents. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representatives. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.10. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and acknowledges that it~~ (i) if not an individual, is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities. 2.1.11~~ Shares. If Subscriber ~~represents~~ is not an individual, Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11. Alone, or together with any professional advisor(s), Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.12. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.13. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable ~~law~~laws. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, itSubscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required~~ 2.1.14. If Subscriber is an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section ~~3.1~~4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that it has not relied on the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber Issuer or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended affiliates (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deTransaction Par

Appears in 1 contract

Sources: Subscription Agreement (Supernova Partners Acquisition Company, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agents (as defined below) and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agents as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into or timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government or governmental, tribunal, judicial, administrative~~ any federal, state, ~~local~~provincial, municipal, local or foreign government, governmental authority, regulatory or ~~any~~ administrative agency, governmental commission, department, board, bureau, ~~board~~agency or instrumentality, ~~commission instrumentality or authority thereof, including any state’s attorney general or any~~ court or ~~arbitrator (public or private)~~ tribunal (“Governmental Authority”), domestic or foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) or a “qualified institutional buyer” ~~(as defined in~~ within the meaning of Rule 144A under the Securities ~~Act) or~~ Act that was also an institutional “accredited ~~investor” (within the meaning of Rule 501(a) under the Securities Act), in each case~~investors”, satisfying the applicable requirements set forth on Schedule AI hereto, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI hereto in addition to certain other customary information reasonably requested by the Issuer)~~. If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares shall contain a ~~restrictive legend~~ legend, or each register for the Shares in book entry form shall contain a notation, to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Issuer files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, covenants ~~and~~ or agreements made to Subscriber by Deutsche Bank Securities Inc. (“Deutsche Bank”) or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇” and together with Deutsche Bank, the ~~Company~~ “Placement Agents”), the Issuer, Rigetti, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement~~. 2.1.7~~ . Subscriber ~~represents~~ understands and ~~warrants~~ acknowledges that (i) it Deutsche Bank or its affiliate is also acting as a financial advisor to Rigetti in relation to the Acquisition and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is also acting as financial advisor to the Issuer. Subscriber understands and acknowledges (i) that Deutsche Bank’s role as financial advisor to Rigetti and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ role as financial advisor to the Issuer, in each case, may give rise to potential conflicts of interest or the appearance thereof. 2.1.7. Subscriber’s acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements herein. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to, and has had an adequate opportunity to review, such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, Rigetti and the Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges ~~that~~ that, as the Subscriber deems necessary, it has ~~had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”):~~ reviewed (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed~~ Issuer’s filings with the Securities and Exchange Commission (the “Commission”~~) (File Nos. 333-261822) (the “Prospectus”~~), (ii) ~~each SEC Document (as defined below) through~~ a presentation with respect to Rigetti provided to Subscriber by the ~~date of this Subscription Agreement~~Issuer, and (iii) the ~~Transaction Agreement~~financial statements of Rigetti as of January 31, ~~a copy of which will be filed by~~ 2020 and 2021 and the ~~Company with the Commission~~years then ended. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. Subscriber acknowledges and agrees that (i) neither of the Placement Agents, nor any affiliate of the Placement Agents, has provided Subscriber with any information or advice with respect to the Shares nor is such information or advice necessary or desired and (ii) neither of the Placement Agents nor any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Neither of the Placement Agents nor any of their respective affiliates has made or makes any representation, express or implied, as to the Issuer, Rigetti, their credit quality, the quality or value of the Shares, the Acquisition or the other transactions contemplated hereby, or the Subscriber’s purchase of the Shares. In connection with the issuance of the Shares to Subscriber and the purchase of the Shares by Subscriber, neither of the Placement Agents nor any of their respective affiliates has acted as a financial advisor or fiduciary to Subscriber. Subscriber acknowledges that neither of the Placement Agents, to the maximum extent permitted by law, shall have any liability or any obligation to the Subscriber in respect of this Subscription Agreement or the transactions contemplated hereby including, but not limited to, any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the Subscriber’s purchase of the Shares. The Subscriber hereby understands and acknowledges that none of the Placement Agents, nor any of their respective affiliates, nor any control persons, officers, directors, employees, agents or representatives of any of the foregoing has made any independent investigation with respect to the Issuer, Rigetti or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. 2.1.9. The Subscriber acknowledges that it has not relied on the Placement Agents in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Subscriber has not relied on any investigation that the Placement Agents, any of their respective affiliates or any person acting on their behalf have conducted with respect to the Shares, Rigetti or the Issuer. The Subscriber further acknowledges that ~~the~~ it has not relied on any information contained in any research reports prepared by the ~~Disclosure Documents is subject to change, and that~~ Placement Agents or any ~~changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms~~ of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentationtheir respective affiliates. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means2.1.10. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i) were not offered by any form of general solicitation or general advertising and (ii)~~ Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and acknowledges that it~~ (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities. 2.1.11~~ Shares. Subscriber ~~represents~~ understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.12. Alone, or together with any professional advisor(s), Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.14. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ; provided that Subscriber is permitted to do so under applicable ~~law~~laws. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, itSubscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1,~~ 2.1.15. If Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity an employee benefit plan that is subject to Title I of ERISA, a ~~direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker~~plan, ~~finder~~ an individual retirement account or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deot

Appears in 1 contract

Sources: Subscription Agreement (Supernova Partners Acquisition Co II, Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Convertible Notes to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Subscriber is not an individual, and has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this ~~Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this~~ Convertible Note Subscription Agreement. 2.1.2 This Convertible Note Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual, the signature on~~ Assuming that this ~~Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This~~ Convertible Note Subscription Agreement constitutes a the valid and binding ~~obligation~~ agreement of the Issuer, the Guarantor, Holdings and Music, this Convertible Note Subscription Agreement constitutes the valid and binding agreement of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Convertible Note Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Convertible Note Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act~~) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~)~~, in each case, satisfying the applicable requirements set forth on Schedule A~~, (ii) is acquiring ~~all of~~ the ~~Securities~~ Convertible Notes only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Convertible Notes as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Convertible Notes with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A)~~Act. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Convertible Notes. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Convertible Notes are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Convertible Notes have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Convertible Notes may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Convertible Notes shall contain a ~~restrictive~~ legend to such effect. Subscriber understands and agrees that the ~~Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities~~ Convertible Notes will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Convertible Notes and may be required to bear the financial risk of an investment in the ~~Securities~~ Convertible Notes for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Convertible Notes. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Convertible Notes directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the Guarantor, Holdings, Music or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Convertible Note Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Convertible Notes will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Convertible Notes, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the ~~representations, warranties~~Issuer or the Convertible Notes or the offer and sale of the Convertible Notes, and ~~covenants of~~ Holdings concerning the ~~Company contained in this Subscription Agreement~~Guarantor. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyConvertible Notes, including ~~(collectively~~with respect to the Issuer, the ~~“Disclosure Documents”): (i)~~ Guarantor, Holdings, Music and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationConvertible Notes. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Convertible Notes solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Convertible Notes were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Convertible Notes, nor were the ~~Securities~~ Convertible Notes offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Convertible Notes (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Convertible Notes. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Convertible Notes, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Convertible Notes and determined that the ~~Securities~~ Convertible Notes are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Convertible Notes or made any findings or determination as to the fairness of ~~this investment~~an investment in the Convertible Notes. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Convertible Notes were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that none of the Issuer, the Guarantor nor any of their respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Convertible Notes, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Convertible Notes. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Issuer’s Common Stock prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national or subnational governments~~ Issuer as a result of the purchase and sale of Convertible Notes hereunder such that a ~~single foreign state~~ declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have ~~a substantial interest~~ control (as dedefined in 31 C.F.R. Part 800.208) over the Issuer or the Guarantor from and after the Closing as a result of the purchase and sale of Convertible Notes hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 and was not formed for the purpose of acquiring the Convertible Notes. 2.1.18 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Convertible Note Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.19 [Reserved].

Appears in 1 contract

Sources: Convertible Note Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Warrant to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if applicable, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into or timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any breach or violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ Governmental Authority, domestic or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI hereto, (ii) is acquiring ~~all~~ the Warrant and the Shares issuable upon exercise of the ~~Securities~~ Warrant (collectively, the “Securities”) only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Warrant as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI hereto)~~. If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities are~~ Warrant is being offered in a transaction not involving any public offering within the meaning of the Securities Act and that none of the Securities have ~~not~~ been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing any of the Securities shall contain a ~~restrictive legend~~ legend, or each register for the Securities in book entry form shall contain a notation, to such effect. Subscriber ~~understands and agrees~~ acknowledges that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that the Company files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Warrant. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Warrant directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have ~~been no~~ not been, and Subscriber hereby agrees that it is not relying on, and has not relied upon, any statements, representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, Supernova, or any of ~~its officers~~ their respective affiliates or any control persons, officers, directors, partners, agents or representatives, any other party to the Acquisition or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7 Subscriber represents~~ 2.1.7. Subscriber’s acquisition and ~~warrants that (i) it is~~ holding of the Warrant will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Warrant, Subscriber ~~represents that it~~ has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements herein. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Warrant or the offer and sale of the Warrant. Subscriber acknowledges and agrees that Subscriber has received access to, and has had an adequate opportunity to review, such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Warrant, including with respect to the Issuer, Supernova and the Acquisition, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Warrant. Without limiting the generality of the foregoing, Subscriber acknowledges ~~that~~ that, as the Subscriber deems necessary, it has ~~had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”):~~ reviewed (i) the ~~final prospectus of the Company, dated as of January 14, 2022 and filed~~ Supernova’s filings with the Securities and Exchange Commission (the “Commission”~~) (File Nos. 333-261822) (the “Prospectus”~~), (ii) ~~each SEC Document (as defined below) through~~ a presentation with respect to the ~~date of this Subscription Agreement~~Issuer provided to Subscriber by the Issuer, ~~and~~ (iii) summary key risks related to the ~~Transaction Agreement~~Issuer, ~~a copy of which will be filed~~ Supernova and the Acquisition provided to Subscriber by the ~~Company with~~ Issuer and (iv) the ~~Commission~~financial statements of the Issuer as of December 31, 2020 and 2019 and the years then ended. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Warrant solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or Supernova or a representative of the ~~Company~~ Issuer or ~~Holdings, or (b) directly from the Company as a result of~~ Supernova. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer, Supernova or their respective representatives, and the ~~Securities were~~ Warrant was offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~Supernova or a representative of the Issuer or Supernova. Subscriber did not become aware of this offering of the Securities, nor ~~were~~ was any of the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that none of the Securities (i) ~~were~~ was not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.10. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and acknowledges that it~~ (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. ~~2.1.11 Subscriber represents and acknowledges that~~ 2.1.11. Alone, or together with any professional advisor(s), Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.12. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of ~~this investment~~an investment in the Securities. ~~2.1.13 Subscriber represents and warrants that~~ 2.1.13. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ; provided that Subscriber is permitted to do so under applicable ~~law~~laws. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), ~~that~~ Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. ~~Subscriber also represents that, to~~ To the extent required, itSubscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. ~~2.1.14~~ 2.1.14. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that it has not relied on the Issuer or any of its affiliates (the “Acquisition Parties”) for investment advice as the Plan’s fiduciary with respect to its decision to acquire and hold the Securities, and none of the Acquisition Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Securities. 2.1.15. [Reserved.] 2.1.16. No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of Warrant hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Warrant hereunder. 2.1.17. On the ~~date~~ dates each portion of the Purchase Price ~~will~~ would be required to be funded to the Issuer pursuant to Section 3.1, Subscriber will have ~~sufficient~~ sufficient, immediately available funds to pay each portion of the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable2.1.18. Subscriber ~~hereby agrees that it shall notify~~ was not formed for the ~~Company promptly in writing in~~ purpose of acquiring the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSecurities. ~~2.1.16~~ 2.1.19. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the ~~Company~~Issuer. ~~2.1.17 Except as expressly disclosed~~ 2.1.20. If Subscriber is an individual, then Subscriber resides in ~~a Schedule 13D~~ the state or ~~Schedule 13G (or amendments thereto) filed by such~~ province identified in the address of Subscriber ~~with~~ set forth on the ~~Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof,~~ signature page hereto. If Subscriber is not ~~currently (and at all times through Closing will refrain from being~~ an individual, then the office or ~~becoming) a member~~ offices of ~~a “group” (within~~ Subscriber where its principal place of business is located is identified in the ~~meaning~~ address or addresses of ~~Section 13(d)(3) or Section 14(d)(2) of~~ Subscriber set forth on the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)signature page hereto. ~~2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~2.1.21. [Reserved.] 2.1.22.

Appears in 1 contract

Sources: Warrant Subscription Agreement (Rigetti Computing, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Securities to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming the due authorization, execution and delivery of the Subscription Agreement by the Company, this Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or~~ materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries in any material respect; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). If Nothing contained herein shall be deemed a representation or warranty by Subscriber to hold the ~~Subscriber is an entity, the~~ Securities for any period of time. Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Securities unless such entity is an accredited investor within the meaning of Rule 501(a)(8) under the Securities Act and all of the equity owners in such entity are accredited investors. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend ~~to such effect~~in substantially the form provided in Section 4.4 hereof. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule ~~144A~~ 144 promulgated under the Securities ~~Act~~Act for at least a year after the Closing Date and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of ~~January 14~~March 10, ~~2022~~ 2021 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-~~261822~~253108 and 333-254114) on ▇▇▇▇▇ ▇▇, ▇▇▇▇ (~~the~~ ▇▇▇ “~~Prospectus~~▇▇▇▇▇▇▇▇▇▇”), (ii▇▇) each SEC Document (as defined below) through the date of this Subscription Agreement, ~~and~~ (iii) the Transaction Agreement, a copy of which ~~will be~~ has been filed by the Company with the Commission and (iv) the investor presentation by the Company and SoundHound (the “Investor Presentation”), a copy of which has been furnished by the Company to the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided ~~herein~~herein including pursuant to Section 3.2 hereof. Subscriber acknowledges and agrees that (i) it has not relied on any statements or other information provided by Guggenheim Securities, ~~and that,~~ LLC (the “Advisor”) or any of the Advisor’s affiliates with respect to its decision to invest in ~~purchasing~~ the Securities, including information related to the Company, SoundHound, the Securities and the offer and sale of the Securities, (ii) neither the Advisor, nor any of the Advisor’s affiliates, has provided Subscriber with any information or advice with respect to the Securities, nor is such information or advice necessary or desired, and (iii) neither the Advisor, nor any of the Advisor’s affiliates, has prepared any disclosure or offering document in connection with the offer and sale of the Securities. Neither the Advisor, nor any of the Advisor’s affiliates, has made or makes any representation as to the Company, SoundHound or the quality or value of the Securities and the Advisor and its affiliates may have acquired non-public information with respect to the Company which Subscriber agrees need not ~~relying upon~~ be provided to it. Subscriber agrees the Advisor shall not be liable to Subscriber for any ~~projections contained~~ action heretofore or hereafter taken or omitted to be taken by it in connection with Subscriber’s purchase of the ~~Investor Presentation~~Securities. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Advisor, the Company, ~~Holdings,~~ SoundHound or a representative of the Advisor, the Company or ~~Holdings~~SoundHound, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company or Holdings~~Company. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Advisor has not acted as its financial advisor. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent ~~required~~required by applicable law or regulation, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent ~~required~~required by applicable law or regulation, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 To the extent Subscriber is one of the covered persons identified in Rule 506(d)(1), Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deA

Appears in 1 contract

Sources: Subscription Agreement (Archimedes Tech Spac Partners Co)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or or, if Subscriber is not an individual, any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is a party or by which Subscriber or, if Subscriber is not an individual, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if Subscriber is not an individual, any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or~~ materially ~~and adversely~~ affect the ability or legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or or, if Subscriber is not an individual, any of its subsidiaries or any of their respective properties that would reasonably be expected to ~~have a~~ materially affect the ability or legal authority of Subscriber ~~Material Adverse Effect~~to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities ~~Act or~~ Act. Subscriber has completed Schedule A following the ~~laws of any jurisdiction (~~signature page hereto and ~~shall provide~~ the ~~requested~~ information ~~set forth on Schedule A)~~contained therein is accurate and complete. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates or book-entry notations representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Company, Sabre or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Company expressly set forth in this Subscription Agreement. 2.1.7 As of the date of this Subscription Agreement, Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law, to the extent such laws are applicable to Subscriber. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyShares, including ~~(collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed~~ with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by respect to the Company ~~with~~ and the ~~Commission~~Transaction. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from the Company, Holdings, or a representative of~~ between Subscriber and the Company or ~~Holdings,~~ Credit Suisse Securities (USA) LLC (the “Placement Agent”). Subscriber and/or its investment manager or ~~(b) directly from the Company as a result of~~ adviser has a pre-~~existing, substantial~~ existing substantive relationship with the ~~Company~~Company or the Placement Agent, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the Company or ~~Holdings~~the Placement Agent. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Subscriber acknowledges that (i) it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person or entity (including, without limitation, the Placement Agent or Sabre), except for the representations and warranties of the Company expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Company, (ii) the Placement Agent and each of its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Shares, or the accuracy, completeness, or adequacy of any information supplied to Subscriber by the Company, and (iii) neither the Placement Agent nor any of its affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber ~~understands and~~ acknowledges that ~~it (i) is a sophisticated investor, experienced~~ the Placement Agent has not acted as Subscriber’s financial advisor or fiduciary in ~~investing in private equity transactions~~ connection with the issuance and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a ~~person,~~ person that is named on an the OFAC List; , (iii) organized, incorporated, established, located, resident or born in, or a citizen, ~~national,~~ national or the government, including any political subdivision, ~~agency,~~ agency or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to use reasonable best efforts to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 ~~On the date the Purchase Price will be required~~ If Subscriber is, or is acting (directly or indirectly) on behalf of, an employee benefit plan that is subject to ~~be funded pursuant~~ Title I of ERISA, a plan, individual retirement account or other arrangement that is subject to Section ~~3.1~~4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber ~~will~~ represents and warrants that (i) none of the Company, Sabre nor any of their respective employees, representatives or affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Shares; (ii) the Subscription complies with the terms of the Plan’s governing instruments and all applicable requirements of ERISA, the Code and all applicable Similar Laws; and (iii) to the extent applicable, the decision to invest in the Shares has been made at the recommendation or direction of an “independent fiduciary” (“Independent Fiduciary”) within the meaning of U.S. Code of Federal Regulations 29 C.F.R. Section 2510.3 21(c), as amended from time to time (the “Fiduciary Rule”) who is (A) independent of the Transaction Parties; (B) capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies (within the meaning of the Fiduciary Rule); (C) a fiduciary (under ERISA and/or Section 4975 of the Code) with respect to Subscriber’s investment in the Shares and is responsible for exercising independent judgment in evaluating the investment in the Shares; and (D) aware of and acknowledges that (I) none of the Transaction Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with Subscriber’s investment in the Shares, and (II) the Transaction Parties have ~~sufficient immediately available funds~~ a financial interest in Subscriber’s investment in the Shares on account of the fees and other remuneration they expect to ~~pay~~ receive in connection with the ~~Purchase Price pursuant to Section 3.1~~Subscription and the Transaction. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) ~~filed by such Subscriber with the Commission~~ with respect to the beneficial ownership of the ~~securities of the Company prior~~ Company’s Class A common stock at any time or from time to ~~the date hereof~~time, Subscriber is not ~~currently (and at all times through Closing will refrain from being or becoming)~~ a member of a “group” (within the meaning of Section 13(d)(3~~) or Section 14(d)(2~~) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) holding or acquiring more than five percent (5%) of the Company’s outstanding Class A common stock, including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~. 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~; provided that Subscriber makes no representation with respect to whether Subscribe

Appears in 1 contract

Sources: Subscription Agreement (Healthcare Merger Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the ~~Securities except (i)~~ Shares or an opinion of counsel satisfactory to the Company ~~or a subsidiary thereof, or (ii) pursuant to another~~ that such registration statement is not required and an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as the Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. The Subscriber ~~further~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Deutsche Bank Securities Inc. and/or RBC Capital Markets, LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares. the information ~~contained in~~ provided to the ~~Disclosure Documents~~ Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from the ~~Company, Holdings,~~ Placement Agents or ~~a representative of the Company or Holdings, or (b)~~ directly from the Company as a result of a pre-~~existing~~exiting, substantial relationship with the Company, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the ~~Company~~ Placement Agents or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Fortress Value Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the other parties hereto, this Subscription Agreement is the valid and binding obligation of Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation by Subscriber of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect; or~~ and (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), ~~in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account~~ and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares, unless Subscriber is a newly formed entity in which all of the equity owners are accredited investors, and is an “institutional account” as defined by FINRA Rule 4512(e). Accordingly, Subscriber is aware that this offering of the Subscribed Shares meets the exemption from filing under FINRA Rule 5123B(1)(A), (C) or (J). ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the ~~Securities~~ Subscribed Shares have not been registered under the Securities ~~Act~~Act and that the Issuer is not and will not be required to register the Subscribed Shares except as set forth in Section 4 of this Subscription Agreement. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ (including without limitation a private resale pursuant to so called “Section 4(a)1½”), and in each case, in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Subscribed Shares shall contain a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the Subscribed Shares is a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, the Company or any of ~~its~~ their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ of the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Subscribed Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone (including ▇.▇. ▇▇▇▇▇▇ Securities LLC and Deutsche Bank Securities Inc. (collectively, in their capacity as placement agents, the “Placement Agents”)), other than the Issuer and its respective representatives concerning the Issuer, the Company or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively~~with respect to the Issuer, the ~~“Disclosure Documents”): (i)~~ Company and the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have (i) received, reviewed and understood the offering materials made available to Subscriber and (ii) had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further~~ represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice you deem appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.9. Subscriber acknowledges and agrees that (a) each of the ~~information contained~~ Placement Agents is acting solely as placement agent in connection with the ~~Disclosure Documents~~ Transactions and is ~~subject~~ not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to ~~change~~(i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, or any other matter concerning the Issuer, the Company or the Transactions, and ~~that~~ (d) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any ~~changes~~ losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Issuer or any other person or entity), whether in contract, tort or otherwise, to ~~the information contained~~ Subscriber, or to any person claiming through Subscriber, in ~~the Disclosure Documents, including any changes based on updated information or changes in terms~~ respect of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationTransactions. ~~2.1.9~~ 2.1.10. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company~~Issuer, ~~Holdings, or a representative of~~ the Company or ~~Holdings, or (b) directly from the Company as a result~~ one of ~~a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings~~their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents~~ Issuer will represent and ~~warrants~~ warrant that the ~~Securities~~ Subscribed Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any applicable state securities laws. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.11. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.12. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.13. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that none of the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer, nor any of its ~~Rule 506(d~~respective affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.14. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~SPAC’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Sports Ventures Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Company to issue the Securities to Subscriber,~~ Such Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 Such Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this ~~Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this~~ Redemption Subscription Agreement. 2.1.2 This Redemption Subscription Agreement has been duly authorized, validly executed and delivered by such Subscriber. ~~If Subscriber is an individual, the signature on this~~ This Redemption Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement constitutes~~ a valid and binding ~~obligation of Subscriber,~~ agreement enforceable against such Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by such Subscriber of this Redemption Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the ~~property or~~ assets of such Subscriber ~~or any of its subsidiaries~~ pursuant ~~to the terms of~~ to, any indenture, mortgage, deed of trust, loan agreement, ~~lease, license~~ or other agreement or instrument to which such Subscriber is a party or by which such Subscriber is bound or to which any of the ~~property or~~ assets of Subscriber is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole,~~ prevent or materially ~~and adversely affect the legal authority~~ delay or ~~ability~~ otherwise materially impede such Subscriber’s timely performance of ~~Subscriber to comply in all material respects with the terms of~~ its obligations under this Redemption Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or any of its subsidiaries in any material respect; or~~ such Subscriber, (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over such Subscriber or any of its ~~subsidiaries or any of their~~ respective properties or assets that would reasonably be expected to have a Subscriber Material Adverse Effect, or (iv) with respect to the issuance of the Subject Shares to such Subscriber upon the Closing, no notice to, or consent or approval of a Governmental Authority is required for such Subscriber to enter into, deliver and perform its obligations under, and all transactions contemplated by, this Redemption Subscription Agreement. 2.1.4 ~~The~~ Such Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subject Shares only for ~~his, her or~~ its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, others and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Subject Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Nothing contained herein shall be deemed a representation or warranty by such Subscriber to hold the ~~Subscriber is an entity, the~~ Subject Shares for any period of time. Such Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subject Shares. 2.1.5 Such Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subject Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subject Shares have not been registered under the Securities ~~Act~~Act except as otherwise required by this Redemption Subscription Agreement. Such Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subject Shares may not be resold, transferred, pledged or otherwise disposed of by such Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a ~~subsidiary~~ Subsidiary thereof, or (ii) to non-U.S. persons pursuant to offers and sales that occur in an “offshore transaction” within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144, provided that all of the applicable conditions thereof have been met, (iv) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, or (v) as it forms part of any stock lending program, and in the case of each of clauses (i), (ii) (iii), (iv) and (v) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Subject Shares shall contain a ~~restrictive~~ legend to such effect. Such Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subject Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Such Subscriber understands and agrees that ~~the Securities will be subject to the foregoing transfer restrictions and,~~ as a result of ~~these~~ the transfer ~~restrictions~~restrictions set forth herein, such Subscriber may not be able to readily resell the ~~Securities~~ Subject Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subject Shares for an indefinite period of time. Such Subscriber understands that it has been advised to consult ~~legal,~~ legal counsel and tax and accounting ~~counsel~~ advisors prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subject Shares. 2.1.6 Such Subscriber understands and agrees that such Subscriber is purchasing the ~~Securities~~ Subject Shares directly from the ~~Company~~Issuer. Such Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to such Subscriber by the Issuer, the Company or any of ~~its officers~~ their respective Affiliates, officers, directors, employees, agents or ~~directors~~representatives, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Redemption Subscription Agreement, and such Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Redemption Subscription Agreement. In particular, without limiting the foregoing, such Subscriber acknowledges that certain information provided by the Company was based on projections, forecasts, estimates, budgets or other prospective information, and such information is based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections, and neither the Company nor any other person makes any representation relating to any such information. 2.1.7 Such Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Subject Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Subject Shares, such Subscriber represents that it has relied solely upon independent investigation made by such Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements herein. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, such Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subject Shares or the offer and sale of the Subject Shares. Such Subscriber acknowledges and agrees that such Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as such Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Subject Shares, including with respect to the Issuer and the Company (including giving effect to the Mergers), and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to such Subscriber’s investment in the ~~Securities~~Subject Shares. ~~Without limiting the generality of the foregoing,~~ Such Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to such Subscriber by the ~~Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of~~ Issuer and the Company~~, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos~~. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Such Subscriber represents and agrees that such Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as such Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationSubject Shares. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Such Subscriber acknowledges that the ~~Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii)~~ Subject Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Such Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Subject Shares. Such Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subject Shares, and such Subscriber has sought such financial, accounting, legal and tax advice as such Subscriber has considered necessary to make an informed investment decision. Other than the Sponsor, such Subscriber ~~understands and acknowledges that it~~ (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities~~ securities, and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Subject Shares. Such Subscriber understands and acknowledges that the purchase and sale of the Subject Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), such Subscriber represents and acknowledges that such Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Subject Shares and determined that the ~~Securities~~ Subject Shares are a suitable investment for such Subscriber and that such Subscriber is able ~~at this time and in the foreseeable future~~ to bear the economic risk of a total loss of such Subscriber’s investment in the ~~Company~~Issuer. Such Subscriber ~~further~~ acknowledges specifically that a possibility of total loss exists. Such Subscriber acknowledges that it shall be responsible for any of ~~investment exists~~such Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Redemption Subscription Agreement, and that neither the Issuer nor the Company has provided any tax advice or any other representation or guarantee regarding the tax consequences of the transactions contemplated by this Redemption Subscription Agreement. 2.1.12 Such Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subject Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subject Shares. 2.1.13 Such Subscriber represents and warrants that such Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Such Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable ~~law~~Law, provided that such Subscriber is permitted to do so under applicable ~~law~~Law. If such Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), such Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Such Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Such Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by such Subscriber and used to purchase the ~~Securities~~ Subject Shares were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as ~~expressly disclosed in~~ a ~~Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership~~ result of the ~~securities of the Company prior to the date hereof~~entry into this Redemption Subscription Agreement, such Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.15 To the extent required, such Subscriber and its affiliates and the Issuer shall each use reasonable best efforts to submit, as promptly as practicable following the date on which the Issuer sends to such Subscriber its written notice of its intent to submit all applicable filings and registrations with, and notifications to, the U.S. Department of Justice, the U.S. Federal Trade Commission and any other Governmental Authority required under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and all other Laws in connection with the transactions contemplated by this Redemption Subscription Agreement and the Merger Agreement, and to use their respective reasonable best efforts to, as promptly as practicable, provide any information requested by the U.S. Department of Justice, the U.S. Federal Trade Commission or any other Governmental Authority to obtain all required authorizations and approvals, and the expiration or termination of any applicable waiting period, under the HSR Act and all other applicable Laws as promptly as practicable after the date hereof. The Issuer shall be responsible for all filing fees payable to a Governmental Authority related to any HSR Act notification applicable in connection with this Redemption Subscription Agreement. 2.1.16 Such Subscriber represents and agrees that on the date hereof, such Subscriber has access to sufficient available funds to pay the Backstop Purchase, and on the date the Backstop Purchase would be required to be funded to the Issuer pursuant to Section 3.1, such Subscriber will have sufficient immediately available funds to pay the Backstop Purchase pursuant to Section 3.1. From the date hereof until the Closing Date, such Subscriber shall not make any dividends or distributions that would render Subscriber unable to satisfy its obligation to pay the Backstop Purchase. From the date hereof until the Closing Date, the Sponsor shall not make any dividends or distributions that would render the Sponsor unable to satisfy all its obligations under this Redemption Subscription Agreement. 2.1.17 Such Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to such Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Such Subscriber hereby agrees that it shall notify the Issuer promptly in ~~31 C.F.R. Part 800.224~~writing in the event a Disqualification Event becomes applicable to such Subscriber or any of its Rule 506(d) in Related Parties, except, if applicable, for a Disqualification Event as to which ~~the national~~ Rule 506(d)(2)(ii) or ~~subnational governments~~ (iii) or (d)(3) is applicable. For purposes of this Section 2.1.17, “Rule 506(d) Related Party” shall mean a ~~single foreign state have~~ person or entity that is a ~~substantial interest (as de~~beneficial owner of

Appears in 1 contract

Sources: Redemption Subscription Agreement (Aurora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Bridgetown 2, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on ~~the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (v) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (B). ~~If the~~ The information provided by Subscriber on Schedule I is ~~an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or Bridgetown 2 or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber ~~represents and warrants~~ is an “employee benefit plan” under ERISA, subject to the assumption that (ithe assets of the Issuer do not constitute “plan assets” under ERISA) ~~it is not~~ constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Bridgetown 2’s representations, ~~warranties~~warranties and agreements contained in Section 3.1 and Section 3.2, ~~and covenants~~ respectively. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer and Bridgetown 2 concerning the Issuer or Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. ~~Subscriber acknowledges and agrees that~~ Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), Bridgetown 2, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber ~~acknowledges that it~~ has received access to and has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to Subscriber by Bridgetown 2 and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber ~~represents~~ and ~~agrees that Subscriber and its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management questions,~~ such questions and receive such answers from Bridgetown 2 and ~~obtain~~ the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares and have independently made their own analysis and decision to invest in the Shares. ~~The~~ Subscriber also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the REA Assets, the management accounts of REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the closing of the sale and purchase of the REA Assets (the “REA Closing”) is subject to the satisfaction of certain closing conditions (the “REA CPs”), including REA’s divestment of its 27% interest in 99 Group (the operator of the websites ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇) and the REA Closing may therefore not occur. Subscriber acknowledges that the status of the REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~Disclosure Documents is subject~~ projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections; (iv) the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to ~~change~~the Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the Issuer or Bridgetown 2; (v) Subscriber has not relied on any statement, representation, warranty or information made or provided by the Placement Agents, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing, with respect to its decision to invest in the Shares, and ~~that~~ the Placement Agents will have no responsibility with respect to (A) any ~~changes to~~ representations, warranties or agreements made by any person or entity under or in connection with the ~~information contained in the Disclosure Documents, including~~ Subscription or any ~~changes based on updated information or changes in terms~~ of the ~~Transaction~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (vi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the Company or any other person or entity), whether in ~~no way affect~~ contract, tort or otherwise, to Subscriber~~’s obligation~~ , or to ~~purchase the Securities hereunder, except as otherwise provided herein, and that~~any person claiming through Subscriber, in ~~purchasing~~ respect of the ~~Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~Subscription. ~~2.1.9~~ (j) Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company~~Placement Agents, ~~Holdings,~~ the Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company~~ Bridgetown 2 as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer, Bridgetown 2 or their representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents, the Issuer or ~~Holdings~~Bridgetown 2. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deno

Appears in 1 contract

Sources: Subscription Agreement (PropertyGuru Group LTD)

Appears in 1 contract

Sources: Subscription Agreement (Vertical Aerospace Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ Grove to issue the ~~Securities to Subscriber~~applicable Subscribed Shares, Subscriber hereby represents and warrants to ~~the Company~~ Grove and ~~Holdings~~ acknowledges and agrees with ▇▇▇▇▇, as of the ~~Company~~ date hereof and ~~Holdings~~ as of the Closing Date (as defined below), as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of Grove, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber (i) is ~~a “qualified institutional buyer”~~ (~~as defined in Rule 144A under the Securities Act~~a) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act)”) and (b) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the Securities ~~only~~ for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view ~~to,~~ to any distribution of the Securities in any manner that would violate the securities laws of the United States or ~~for offer or sale in connection with~~any other applicable jurisdiction and (iii) is not acquiring the Securities with a view towards, any distribution thereof in violation of the Securities ~~Act~~ Act; provided, however, that by making the representations herein, Subscriber does not agree to hold any of the Securities or any other securities for any minimum or other specific term and reserves the ~~laws~~ right to dispose of the Securities at any ~~jurisdiction (and shall provide~~ time in accordance with or pursuant to a registration statement or an exemption under the ~~requested information set forth on Schedule A)~~Securities Act. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Securities. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ issuer of such Securities or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ (including Rule 144), and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the Securities shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale as set forth in this Subscription Agreement). Subscriber ~~understands and agrees~~ acknowledges that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that unless the resale of the Securities is covered by an effective registration statement under the Securities Act, the Securities will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has determined based on its own independent review and such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax professional advice as ~~Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that~~ it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined deems appropriate that the Securities are a suitable investment for ~~Subscriber~~ Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Securities, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Grove. 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Company~~Securities from Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by Grove or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.7. In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of Grove contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone, other than Grove and its representatives concerning Grove, Securities or the offer and sale of the Securities. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Securities, including with respect to Grove. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. Subscriber represents and warrants it is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Securities and the business, condition (financial and otherwise), management, operations, properties and prospects of Grove, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. 2.1.8. Subscriber became aware of this offering of the Securities solely by means of direct contact between Subscriber and Grove or one of their respective representatives. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any general solicitation. Subscriber acknowledges that Grove represents and warrants that the Securities were not offered by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act. 2.1.9. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of ~~this investment~~an investment in the Securities. ~~2.1.13~~ 2.1.10. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1,~~ 2.1.11. Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (is not a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ foreign person (as defined ~~below), except, if applicable, for~~ in 31 C.F.R. Part 800.224) in which the national or subnational governments of a ~~Disqualification Event~~ single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in Grove as a result of the purchase and sale of Securities hereunder such that a declaration to ~~which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ the ~~Company promptly in writing~~ Committee on Foreign Investment in the ~~event~~ United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Grove from and after the Closing as a ~~Disqualification Event becomes applicable to Subscriber or any~~ result of ~~its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes~~ the purchase and sale of ~~this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under~~ the Securities ~~Act~~hereunder. ~~2.1.16~~ 2.1.12. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on ~~the Company~~Grove. ~~2.1.17 Except as expressly disclosed~~ 2.1.13. Subscriber agrees that, from the date of this Subscription Agreement until the Closing, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in ~~a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission~~ any Short Sales with respect to ~~the beneficial ownership of the~~ securities of Grove. For the ~~Company prior to the date~~ purposes hereof, ~~Subscriber is not currently (and at~~ “Short Sales” shall mean all ~~times through Closing will refrain from being or becoming) a member of a~~ “~~group~~short sales” ~~(within the meaning of Section 13(d)(3) or Section 14(d)(2) of~~ as defined in Rule 200 promulgated under Regulation SHO under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but shall not include pledging in the ordinary course of business as part of prime brokerage arrangements. Notwithstanding the foregoing, (a) nothing herein shall prohibit any entities under common management or that share an investment advisor with Subscriber (including Subscriber’s controlled affiliates and/or affiliates) from entering into any Short Sales and (b) in the case of a Subscriber that is a multimanaged investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets, this Section 2.1.13 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement. For the avoidance of doubt, this Section 2.1.13 shall not apply to (i) any sale (including the exercise of any redemption right) of securities of Grove (A) held by Subscriber, its controlled affiliates or any ~~successor provision~~person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (B) purchased by Subscriber, its controlled affiliates or any person or entity acting ~~for~~ on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the ~~purpose~~ execution of ~~acquiring~~this Subscription Agreement or (ii) ordinary course, ~~holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act)~~non-speculative hedging transactions. ~~2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~

Appears in 1 contract

Sources: Subscription Agreement (Grove Collaborative Holdings, Inc.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of the Subscriber, is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares and the Warrants only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares or the Warrants as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares or the Warrants with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares or the Warrants. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares and the Warrants have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares and the Warrants may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any ~~book entries~~ certificates representing the ~~Securities~~ Shares or the Warrants shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares or the Warrants will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares or the Warrants will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares or the Warrants and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares or the Warrants for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares or the Warrants. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares and the Warrants directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares and the Warrants will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares and the Warrants, Subscriber represents that it has relied solely upon independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Shares and the ~~representations, warranties,~~ Warrants or the offer and ~~covenants~~ sale of the ~~Company contained in this Subscription Agreement~~Shares and the Warrants. Subscriber acknowledges and agrees that Subscriber has received ~~and has had an adequate opportunity to review,~~ such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and ~~made its own assessment and is satisfied concerning~~ the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanyWarrants, including ~~(collectively~~with respect to the Issuer, Holdings, Music and the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionTransactions. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities. The Subscriber further acknowledges that~~ Shares and the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationWarrants. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares and the Warrants solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company, Holdings,~~ Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company as a result of~~ its representative. Subscriber has a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer or its representative, and the ~~Securities~~ Shares and the Warrants were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~its representative. Subscriber did not become aware of this offering of the ~~Securities~~Shares and the Warrants, nor were the ~~Securities~~ Shares or the Warrants offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities~~ Shares and the Warrants (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares and the Warrants. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares and the Warrants, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and the Warrants and determined that the ~~Securities~~ Shares and the Warrants are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or the Warrants or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares or the Warrants. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under ~~applicable law~~the laws of The Kingdom of Saudi Arabia; provided, further that Subscriber shall not, except as reasonably required to establish the escrow account established pursuant to Section 3.1 and, for as long as Subscriber elects to pursue such filing with a Governmental Authority, as required in connection with any filing with a Governmental Authority as contemplated by the Investor Rights Agreement referred to in Section 2.1.15, be required to provide any personally identifiable information, including with respect to any employees, directors, managers or affiliates of Subscriber. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares and the Warrants were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code (collectively, “Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds~~ represents and warrants that neither Issuer, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to ~~pay~~ its decision to acquire and hold the ~~Purchase Price pursuant~~ Shares and the Warrants, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to ~~Section 3.1~~any decision to acquire, continue to hold or transfer the Shares and the Warrants. 2.1.15 ~~Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii~~Except (i) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the ~~securities of the Company~~ Issuer’s common stock prior to the date hereof and (ii) as a result of the entry into this Agreement and the Investor Rights Agreement, dated as of the date hereof, among Subscriber, Issuer and the other parties thereto, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No foreign person~~ 2.1.16 Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part ~~800.224~~800.244) in ~~which~~ the ~~national~~ Issuer as a result of the purchase and sale of Shares and the Warrants hereunder. 2.1.17 Subscriber has, and on each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. Subscriber is an entity having total liquid assets and net assets in excess of the Purchase Price as of the date hereof and as of each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1 and was not formed for the purpose of acquiring the Shares and Warrants. 2.1.18 No broker, finder or ~~subnational governments~~ other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a ~~single foreign state have a substantial interest (~~way as deto create any liability on the Issuer.

Appears in 1 contract

Sources: Subscription Agreement (Churchill Capital Corp III)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 2.1.1. If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the ~~authority~~ capacity to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. ~~2.1.2 This~~ 2.1.2. If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 2.1.4. Subscriber is (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) or (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases ‎(i) and ‎(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that ~~any book entries representing~~ the ~~Securities~~ Subscribed Shares shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon delivery of an opinion of counsel by Subscriber, in form reasonably satisfactory to the transfer agent of the Issuer, to the effect that such legends are not required in order to establish compliance with any provisions of the Securities Act). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares, and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable other federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the ~~Company~~ Issuer contained in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and its representatives concerning the Issuer or the Subscribed Shares or the offer and sale of the Subscribed Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the CompanySubscribed Shares, including ~~(collectively,~~ with respect to the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionIssuer. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber ~~further acknowledges that the information contained in the Disclosure Documents~~ represents and warrants it is ~~subject to change~~relying exclusively on its own sources of information, investment analysis and ~~that any changes~~ due diligence (including professional advice you deem appropriate) with respect to the ~~information contained in~~ Subscribed Shares and the ~~Disclosure Documents~~business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including ~~any changes based on updated information or changes in terms of the Transaction~~but not limited to all business, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder~~legal, ~~except as otherwise provided herein~~regulatory, accounting, credit and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~tax matters. ~~2.1.9~~ 2.1.9. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings~~one of their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii~~advertising, including methods described in section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. ~~2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities~~2.1.10. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares. ~~2.1.13~~ 2.1.11. Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber ~~represents that if it~~ is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that ~~Subscriber, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Subscribed Shares were legally derived. ~~2.1.14 On~~ 2.1.12. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other Similar Laws or an entity whose underlying assets are considered to ~~Section 3.1~~include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber ~~will have sufficient immediately available funds to pay~~ represents and warrants that neither the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or Issuer nor any of its ~~Rule 506(d~~affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActSubscribed Shares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 2.1.13. Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18 No~~ 2.1.14. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder. 2.1.15. On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section ‎3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section ‎3.1. 2.1.16. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer. 2.1.17. Subscriber agrees that, from the date of this Subscription Agreement until the Closing or the earlier termination of this Subscription Agreement, none of Subscriber, its controlled affiliates, or any person or entity acting on behalf of Subscriber or any of its controlled affiliates or pursuant to any understanding with Subscriber or any of its controlled affiliates will engage in any Short Sales with respect to securities of the Issuer. For the purposes hereof, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), including through non-U.S. broker dealers or foreign regulated brokers.

Appears in 1 contract

Sources: Subscription Agreement (Biodesix Inc)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the Placement Securities to ~~Subscriber~~Subscriber and to enter into this Subscription Agreement, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agent (as defined herein) and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ the Placement Agent as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (~~within the meaning of~~ as described in Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI or otherwise reasonably acceptable to the Issuer, (ii) is acquiring ~~all of~~ the Placement Securities only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the Placement Securities as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (iii) is not acquiring the Placement Securities ~~for investment purposes only and not~~ with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A)~~. ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the Placement Securities. Subscriber understands that the offering of the Placement Securities hereunder (the “offering”) meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) ~~to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that~~ is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to an institutional account as defined in FINRA Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”4512(c), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving ~~a security or~~ securities and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the Placement Securities. Accordingly, Subscriber understands that the offering meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b). 2.1.6 Subscriber understands that the Placement Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Placement Securities have not been registered under the Securities Act. Subscriber understands that the Placement Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Placement Securities shall contain a legend to such effect. Subscriber acknowledges and agrees that the Placement Securities will not immediately be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the Placement Securities will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Placement Securities and may be required to bear the financial risk of an investment in the Placement Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Placement Securities. 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the Placement Securities directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, the Placement Agent or any of their respective officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by the Placement Agent or any of its affiliates or any of its or their control persons, officers, directors and employees, in making its investment or decision to invest in the Issuer. 2.1.8 Subscriber represents and warrants that its acquisition and holding of the Placement Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable similar law. 2.1.9 No disclosure or offering document has been prepared in connection with the offer and sale of the Placement Securities by any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Co. or its respective affiliates (the “Placement Agent”). In making its decision to purchase the Placement Securities, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Subscription Agreement and the independent investigation made by Subscriber. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by the Placement Agent concerning the Issuer or the offer and sale of the Placement Securities, and acknowledges and agrees that the Placement Agent has not provided Subscriber with any information, recommendation or advice with respect to the Placement Securities nor is such information, recommendation or advice necessary or desired. The Placement Agent has not made or does not make any representation as to the Issuer or the quality of the Placement Securities and the Placement Agent may have acquired non-public information with respect to the Issuer which Subscriber agrees need not be provided to it. Subscriber acknowledges and agrees that Subscriber had access to, and an adequate opportunity to review, financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Placement Securities. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Placement Securities. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Placement Securities. 2.1.10 Subscriber became aware of this offering of the Placement Securities solely by means of direct contact between Subscriber and the Issuer or its representative (including the Placement Agent) and Subscriber had a prior pre-existing relationship with the Issuer or the Placement Agent under the U.S. securities laws interpretations. Subscriber did not become aware of this offering of the Placement Securities, nor were the Placement Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Placement Securities are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.11 Subscriber ~~represents and~~ acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Placement Securities, including those set forth in the SEC Documents (as defined below) and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the~~ an investment in the Placement Securities, and has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. 2.1.12 Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Placement Securities and determined that the Placement Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Placement Securities or made any findings or determination as to the fairness of ~~this investment~~an investment in the Placement Securities. ~~2.1.13~~ 2.1.14 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Placement Securities were legally derived. ~~2.1.14 On~~ 2.1.15 If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents Code or an employee benefit plan that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (~~is a ~~“Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties~~ governmental plan (as defined ~~below~~in section 3(32) of ERISA), ~~except~~a church plan (as defined in section 3(33) of ERISA), ~~if applicable, for~~ a ~~Disqualification Event~~ non-U.S. plan (as ~~to which Rule 506(d)(2)(ii~~described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15collectively, “~~Rule 506(d~~Similar Laws”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) ~~Related Party”~~ subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that none of the Issuer, its affiliates or the Placement Agent (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Placement Securities, and none of the Transaction Parties shall ~~mean a person~~ at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or ~~entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under~~ transfer the ~~Securities Act~~Placement Securities. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber, or a “group” comprised solely of Subscriber and its affiliates, with the Commission with respect to the beneficial ownership of the ~~securities of the Company prior to the date hereof~~Issuer’s common stock, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) ), including any group acting for the purpose of acquiring, holding or disposing of equity securities of the ~~Company~~ Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). ~~2.1.18~~ 2.1.17 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dedefined in 31 C.F.R. Part 800.244) will acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in the Issuer as a result of the purchase and sale of the Placement Securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and Subscriber will not have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Placement Securities hereunder. 2.1.18 Subscriber has, and on each date the Purchase Price would be required to

Appears in 1 contract

Sources: Subscription Agreement (DeFi Development Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce ~~the Company~~ each Issuer to issue the ~~Securities to Subscriber~~applicable Subscribed Shares, Subscriber hereby represents and warrants to ~~the Company~~ each Issuer and ~~Holdings~~ acknowledges and agrees with Issuer, as of the ~~Company~~ date hereof and ~~Holdings~~ as of the Closing Date, as follows: ~~2.1.1~~ 4.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 4.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of each Issuer, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 4.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~ii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber ~~or any of its subsidiaries or any of their respective properties~~ that would reasonably be expected to have a material adverse effect on the legal authority and ability of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). ~~2.1.4 The~~ 4.1.4. Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, in each case, satisfying the applicable requirements set forth on Schedule AB, (ii) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AB following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 4.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Subscribed Shares have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dethe

Appears in 1 contract

Sources: Subscription Agreement (Virgin Group Acquisition Corp. II)

Appears in 1 contract

Sources: Subscription Agreement (Mirion Technologies, Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~To induce the Company to issue the Securities to Subscriber,~~ Subscriber hereby represents and warrants ~~to the Company and Holdings and agrees with the Company and Holdings as follows~~that: ~~2.1.1~~ (a) If Subscriber is not a natural person, (i) Subscriber has been duly organized, formed or ~~incorporated~~ incorporated, as the case may be, and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of ~~incorporation~~ organization, formation or ~~formation~~incorporation, as the case may be, with all requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. , and (ii) this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. (b) If Subscriber is ~~an individual~~a natural person, (i) Subscriber has ~~the~~ all requisite power and authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized~~, ~~executed and delivered by~~ (ii) Subscriber~~. If Subscriber is an individual, the~~ ’s signature on this Subscription Agreement is ~~genuine,~~ genuine and Subscriber has duly executed and delivered this Subscription Agreement, and (iii) Subscriber has all requisite legal competence and capacity to ~~execute~~ acquire and hold the ~~same. This~~ Acquired Shares and to execute, deliver and comply with the terms of this Subscription Agreement. (c) Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (d) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not ~~(i)~~ conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, if applicable, pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or, if applicable, any of its subsidiaries is a party or by which Subscriber or, if applicable, any of its subsidiaries is bound or to which any of the property or assets of Subscriber or, if applicable, any of its subsidiaries is subject, which would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a material adverse effect on the business, ~~properties~~properties or financial condition of Subscriber, ~~financial condition~~or, ~~shareholders~~if applicable, the stockholders’ equity or results of operations of Subscriber ~~and~~ or, if applicable, any of its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with ~~the terms of~~ Subscriber’s obligations under this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”);~~ Agreement, (ii) ~~if Subscriber is not an individual, result in any violation of the provisions of~~ the organizational documents of Subscriber ~~or any of its subsidiaries in any material respect;~~ if Subscriber is not a natural person, or (iii) ~~result in any violation of~~ any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or or, if applicable, any of its subsidiaries or any of their respective properties that would be reasonably ~~be expected~~ likely to ~~have~~ have, individually or in the aggregate, a Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with Subscriber’s obligations under this Subscription Agreement. ~~2.1.4 The~~ (e) Subscriber is (i) ~~is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or~~ an “accredited investor~~” (within the meaning of Rule 501(a) under the Securities Act), in each case~~, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities an “Institutional Account” as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, defined in FINRA Rule 4512(c) and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and in connection with ~~regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating~~ its participation in the ~~purchase~~ Offering. Subscriber represents that it is purchasing its entire beneficial ownership interest in the Acquired Shares for its own account (and not for the account of others) for investment purposes and not with a view to the distribution thereof in violation of the ~~Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks~~ securities laws of the ~~investment in~~ United States or any other jurisdiction, provided, that (subject to the ~~Securities, has analyzed and fully considered~~ securities laws of the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss United States or any other jurisdiction) disposition of Subscriber’s ~~investment~~ property shall at all times be within Subscriber’s control. Subscriber understands that (1) the Acquired Shares (A) have not been registered under the securities laws of the United States or any other jurisdiction and may be resold or transferred in the ~~Company~~United States or otherwise only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, and (B) may only be resold or transferred in compliance with applicable law and the restrictions on transfer set forth in this Subscription Agreement, and that (2) the Issuer is not required to register the Acquired Shares other than as provided in Section 5 of this Agreement. Subscriber further ~~acknowledges specifically~~ represents and warrants that ~~a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal~~ it will not sell, transfer or ~~state agency has passed upon or endorsed the merits~~ otherwise dispose of the ~~offering~~ Acquired Shares or any interest therein except in a registered transaction or in a transaction exempt from or not subject to the registration requirements of the Securities ~~or made any findings or determination as to~~ Act and except in accordance with the ~~fairness~~ terms and conditions of this ~~investment~~Subscription Agreement. Subscriber acknowledges that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement. ~~2.1.13~~ (f) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, ~~provided~~ provided, that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a ~~third~~ third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Acquired Shares were legally derived. ~~2.1.14 On~~ (g) The purchase of Acquired Shares by Subscriber has not been solicited by or through anyone other than the ~~date~~ Issuer or the ~~Purchase Price~~ Agent. (h) Subscriber acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Acquired Shares will be subject to transfer restrictions as set forth on Exhibit A to this Subscription Agreement, unless and until such transfer restrictions have been removed in accordance with Section 9(d) of this Subscription Agreement and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Acquired Shares and may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. Subscriber also acknowledges that the Acquired Shares will not immediately be ~~funded~~ eligible for offer, resale, transfer, pledge or disposition pursuant to ~~Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in~~ Rule ~~506(d)(1)(i)-(viii)~~ 144 promulgated under the Securities Act (a “~~Disqualification Event~~Rule 144”), and that the provisions of Rule 144(i) ~~is applicable~~ will apply to the Acquired Shares. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of ~~its Rule 506(d~~the Acquired Shares. (i) ~~Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3)~~ Subscriber understands and agrees that Subscriber is ~~applicable~~purchasing the Acquired Shares directly from the Issuer. Subscriber ~~hereby agrees~~ further acknowledges that ~~it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable~~ (i) there have been no, and will be no, representations, warranties, covenants or agreements (express or implied, of any kind or character) made to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with Subscriber’s purchase of the Acquired Shares by the Issuer, the Agent, the Company, the Charterhouse Parties, any other party to the Business Combination Agreement or participant in the Transactions or any of their respective Representatives, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Subscription Agreement, (ii) the Agent has not provided any advice or recommendation to Subscriber in connection with Subscriber’s purchase of the Acquired Shares, and (iii) the Agent will not have any responsibility to Subscriber with respect to (x) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (y) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the Company, the Charterhouse Parties or the Transactions. (j) In making its decision to purchase the Acquired Shares, Subscriber represents that it has relied solely upon the independent investigation made by Subscriber and has independently made its own analysis and decision to enter into this Subscription Agreement or and purchase the ~~transactions contemplated hereby~~ Acquired Shares, in each case, based on such ~~a way~~ information as ~~to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by~~ such Subscriber ~~with~~ has deemed appropriate and without reliance upon the ~~Commission~~ Agent or any of Agent’s affiliates. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the ~~beneficial~~ Acquired Shares, including with respect to the Issuer, the Transactions, the Company, the Charterhouse Parties and their respective affiliates and Representatives. Subscriber represents and warrants that Subscriber and Subscriber’s professional advisor(s), if any, (i) were given the opportunity to ask questions and receive answers concerning the terms and conditions of the Subscription, the Issuer, the Company, the Charterhouse Parties and to obtain any additional information which the Issuer possessed or could acquire without unreasonable effort or expense and (ii) received, reviewed and understood the offering materials made available to it in connection with the Subscription and (iii) conducted and completed its own independent due diligence with respect to the Transactions. Except for the representations, warranties and agreements of the Issuer set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it may deem appropriate) with respect to the Subscription, the Acquired Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, Company and the Charterhouse Parties, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. (k) Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer or by means of contact from ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, acting as a placement agent for the Issuer (together with its affiliates and any of its or their control persons, officers, directors and employees, the “Agent”), and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer or by contact between Subscriber and the Agent. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D of the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. (l) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~securities~~ Acquired Shares, including those set forth in the SEC Documents and the investor presentation provided by the Issuer. Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. (m) Without limiting the representations, warranties and covenants set forth in this Subscription Agreement, Subscriber represents and acknowledges that Subscriber has, alone, or together with any professional advisor(s), adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Issuer. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that its purchase of the ~~Company prior~~ Acquired Shares (i) is fully consistent with its financial needs, objectives and condition, (ii) comply and is fully consistent with all investment policies, guidelines and other restrictions applicable to it, and (iii) is a fit, proper and suitable investment for it, notwithstanding the substantial risks inherent in investing in or holding the Acquired Shares. Subscriber acknowledges that it is able to bear the substantial risk associated with the purchase of the Acquired Shares, and specifically that a possibility of total loss exists. (n) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the ~~date hereof,~~ fairness of an investment in the Acquired Shares. (o) If Subscriber is ~~not currently~~ or is acting on behalf of (~~and at all times through Closing will refrain from being or becoming~~i) an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) a ~~member of a “group” (within the meaning of~~ plan, an individual retirement account or other arrangement that is subject to Section ~~13(d)(3) or Section 14(d)(2)~~ 4975 of the ~~Securities Exchange Act~~ Internal Revenue Code of ~~1934~~1986, as amended (the “~~Exchange Act~~Code”), (iii) an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement described in clauses (i) and (ii) (each, an “ERISA Plan”), or ~~any successor provision~~(iv) ~~acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person~~ an employee benefit plan that is a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~Section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing clauses (i), (ii) or (iii) but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”, an

Appears in 1 contract

Sources: Subscription Agreement (GS Acquisition Holdings Corp II)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares and the Warrants to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ HPX and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ HPX as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, approved by all necessary action, validly executed and delivered by Subscriber. If The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is ~~an individual~~fully consistent with all investment policies, guidelines and other restrictions applicable to the ~~signature on~~ Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and HPX, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance ~~by Subscriber~~ of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated ~~herein~~ herein, including the Transactions, do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, ~~which~~ that would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and~~ adversely affect the ~~legal authority or~~ Subscriber’s ability ~~of Subscriber~~ to ~~comply in all material respects with the terms of~~ acquire and hold Shares and to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (iA) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (9) or (12) of Regulation D under the Securities Act), in ~~each case,~~ either case satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such accountI, and ~~the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such~~ an “institutional account” as defined in FINRA Rule 4512(c), and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”)Shares, (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (iB) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities and~~ securities, (iiC) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares, (D) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring its entire beneficial interest in the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction, (E) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares, and (F) acknowledges that the offering meets the exemptions from filing under FINRA Rules 5123(b)(1)(A), (C) and (J); (ii) Subscriber is located outside the United States and not a U.S. person, (A) Subscriber is acquiring the Shares in an "offshore transaction" meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the offering meets the exemptions from filing under FINRA Rule 5123(c), (C) Subscriber is are aware that the sale to it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the Securities Act, and the Subscriber and the person, if any, for whose account or benefit the Subscriber is acquiring the Shares was located outside the United States and was not a U.S. person at the time (x) the offer was made to it and (y) when the buy order for such Shares was originated, and continues to be located outside the United States and not to be a U.S. person and has not purchased such Shares for the account or benefit of any person located in the United States or who is a U.S. person, or entered into any arrangement for the transfer of such Shares or any economic interest therein to any person located in the United States or any U.S. person, and (D) Subscriber is authorized to consummate the purchase of the Shares offered pursuant to this Subscription in compliance with all applicable laws and regulations of the jurisdiction where such sales are to be made; (iii) Subscriber is resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”); and (v) Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or resident in a jurisdiction other than the Federative Republic of Brazil, and able to hold securities and engage in financial settlement of securities transactions with funds held in the United States. The information provided by Subscriber on Schedule I is true and correct in all respects. ~~2.1.11~~ (e) Together with its investment adviser, if applicable, Subscriber ~~represents~~ understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Brazilian Offering Regulations, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities Act, the Brazilian Offering Regulations or any other applicable securities laws. Subscriber understands that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries or certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber ~~has such knowledge~~ understands and ~~experience in financial and business matters~~ agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to ~~be capable of evaluating the merits and risks~~ readily offer, resell, transfer or pledge or otherwise dispose of the ~~investment in~~ Shares and may be required to bear the ~~Securities, has analyzed and fully considered the risks~~ financial risk of an investment in the ~~Securities and determined~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, transfer or disposition of any of the ~~Securities are a suitable investment for Subscriber and that~~ Shares. (f) Subscriber is ~~able at this time and in~~ purchasing the ~~foreseeable future to bear~~ Shares directly from the ~~economic risk of a total loss of Subscriber’s investment in the Company~~Issuer. Subscriber further acknowledges ~~specifically~~ that ~~a possibility of total loss of investment exists. 2.1.12~~ there have been no representations, warranties, covenants, statements or agreements made to Subscriber ~~understands and agrees that no federal~~ by or ~~state agency has passed upon or endorsed the merits~~ on behalf of the ~~offering~~ Issuer or HPX or any of their respective affiliates, officers or directors, employees, partners, agents or representatives, or any other party to the Transactions or any other person or entity (including the Placement Agents), expressly or by implication (including by omission), other than those representations, warranties, covenants, statements and agreements of the ~~Securities or made any findings or determination as to the fairness of~~ Issuer and HPX expressly set forth in this ~~investment. 2.1.13 Subscriber represents~~ Subscription Agreement, and ~~warrants that~~ Subscriber is not relying on any representations, warranties, covenants, statements or agreements other than those expressly set forth in this Subscription Agreement. (ig) ~~a person or entity named on~~ Subject to the ~~List~~ assumption that the assets of ~~Specially Designated Nationals and Blocked Persons,~~ the ~~Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by~~ Issuer do not constitute “plan assets” under the U.S. ~~Treasury Department’s Office~~ Employee Retirement Income Security Act of ~~Foreign Assets Control~~ 1974, as amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”), if Subscriber is or ~~a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or~~ is acting on behalf ofof an employee benefit plan that is subject to Title I of ERISA, a ~~person~~plan, an individual retirement account or other arrangement that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership section 4975 of the ~~securities~~ U.S. Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person an employee benefit plan that is a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing, but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that its acquisition and holding of Shares do not and will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Code, or under Similar Law or otherwise violate the provisions thereunder. (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber is not relying upon, and has not relied upon, any statements, representation or warranty or other information provided by anyone (including HPX, the Issuer, the Company, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the representations and warranties of the Issuer and HPX expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), HPX, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. Subscriber has received access to and has had an adequate opportunity to review the documents made available to Subscriber by HPX and the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions and receive such answers from HPX and the Issuer or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and HPX expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Issuer, the Company or any other person or entity in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, HPX or any other person or entity in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or reco

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Bridgetown 2, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on ~~the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (v) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (J). ~~If the~~ The information provided by Subscriber on Schedule I is ~~an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or Bridgetown 2 or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber ~~represents and warrants~~ is an “employee benefit plan” under ERISA, subject to the assumption that (ithe assets of the Issuer do not constitute “plan assets” under ERISA) ~~it is not~~ constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Bridgetown 2’s representations, ~~warranties~~warranties and agreements contained in Section 3.1 and Section 3.2, ~~and covenants~~ respectively. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer and Bridgetown 2 concerning the Issuer or Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. ~~Subscriber acknowledges and agrees that~~ Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), Bridgetown 2, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber ~~acknowledges that it~~ has received access to and has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to Subscriber by Bridgetown 2 and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber ~~represents~~ and ~~agrees that Subscriber and its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management questions,~~ such questions and receive such answers from Bridgetown 2 and ~~obtain~~ the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares and have independently made their own analysis and decision to invest in the Shares. ~~The~~ Subscriber also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the REA Assets, the management accounts of REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information ~~contained in~~ provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the ~~Disclosure Documents~~ closing of the sale and purchase of the REA Assets (the “REA Closing”) is subject to ~~change, and that any changes to~~ the ~~information contained in~~ satisfaction of certain closing conditions (the ~~Disclosure Documents~~“REA CPs”), including ~~any changes based on updated information or changes~~ REA’s divestment of its 27% interest in ~~terms~~ 99 Group (the operator of the ~~Transaction~~websites ▇▇.▇▇, ~~shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein,~~ ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~▇▇▇▇▇▇▇▇. ~~2.1.9 Subscriber became aware of this offering of the Securities solely (a~~▇▇▇) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the ~~Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did~~ REA Closing may therefore not ~~become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means~~occur. Subscriber acknowledges that the ~~Company represents and warrants that~~ status of the ~~Securities~~ REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges ~~that it is aware that there are substantial risks incident to the purchase~~ and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it agrees that: (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase each of the ~~Securities. 2.1.11 Subscriber represents~~ Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and ~~acknowledges~~ each Placement Agent may have affiliates that ~~Subscriber has such knowledge and experience~~ act as an advisor to the Company in ~~financial and business matters as to be capable of evaluating~~ connection with the ~~merits and risks~~ Transactions; none of the ~~investment in the Securities, has analyzed and fully considered the risks of~~ Placement Agents is acting as an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) underwriter or in any ~~Executive Order issued by the President of the United States~~ other capacity and ~~administered by OFAC (“OFAC List”), or~~ is not and shall not be construed as a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed fiduciary for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with ~~this Subscription Agreement~~ the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the ~~transactions contemplated hereby in~~ accuracy or completeness of, such ~~a way as to create any liability on~~ information or projections; (iv) the ~~Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission~~ Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the ~~beneficial ownership~~ Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the ~~securities of~~ Issuer or Bridgetown 2; (v) Subscriber has not relied on any statement, representation, warranty or information made or provided by the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Placement Agents, or any ~~successor provision) acting for the purpose~~ of ~~acquiring~~their respective affiliates or any control persons, ~~holding~~ officers, directors, employees, agents or ~~disposing~~ representatives of ~~equity securities~~ any of the foregoing, with respect to its decision to invest in the Shares, and the Placement Agents will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Subscription or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (vi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the Company ~~(within~~ or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the ~~meaning of Rule 13d-5(b)(1) under the Exchange Act)~~Subscription. ~~2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de~~

Appears in 1 contract

Sources: Business Combination Agreement (Bridgetown 2 Holdings LTD)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Issuer, as of the date hereof and ~~Holdings~~ as of the Closing, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming this Subscription Agreement constitutes the valid and binding agreement of the Issuer, ~~the signature on~~ then this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, ~~and~~ or (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof) and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity~~ prevent or ~~results~~ delay Subscriber’s timely performance of ~~operations of Subscriber and~~ its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) (1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares and is an “institutional account” as defined by FINRA Rule 4512(c). 2.1.5 If the Subscriber is a resident of Israel or an entity organized under the laws of the State of Israel, the Subscriber represents that it is qualified as a “Classified Investor” under the First Supplement of the Israeli Securities Law of 1968, as amended (the “Israeli Securities Law”), by complying with at least one of the items (1) – (11) under such First Supplement. Prior to the date hereof, such Subscriber represents it has informed the Issuer under which items it is qualified as a “Classified Investor”, and provided the Issuer with supplemental information necessary to establish such qualification. The Subscriber is aware of the implications of the status of being a Classified Investor specified in the First Supplement of the Israeli Securities Law and consents thereto. 2.1.6 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) pursuant to offers and sales that qualify as “offshore transactions” within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (ii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. Subscriber understands that any certificates or book-entry records representing the Shares shall contain a restrictive legend to such effect in the following form (provided that such legend shall be subject to removal in accordance with Section 9.4 hereof): “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.” ~~2.1.6~~ 2.1.7 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the SPAC or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.8 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ 2.1.9 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants of the Company contained~~ agreements in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber (i) has ~~received~~ received, and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares (including with respect to the Issuer, the SPAC and the Transactions), (ii) has made its own assessment and (iii) is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to the Subscriber by the ~~Company, including (collectively,~~ Issuer in the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of virtual dataroom to which ~~will be filed by the Company with the Commission~~Subscriber has been granted access. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the ~~full~~ opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and the SPAC, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber acknowledges that BofA Securities, Inc., W▇▇▇▇ Fargo Securities, LLC and R▇▇▇▇▇▇ J▇▇▇▇ & Associates, Inc. (collectively, the “Placement Agents”) and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Issuer, the SPAC or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer or the SPAC. ~~The~~ Subscriber acknowledges that (i) it has not relied on any statements or other information provided by any of the Placement Agents or any of the Placement Agent’s respective affiliates with respect to its decision to invest in the Shares, including information related to the Issuer, the SPAC and the Shares, and the offer and sale of the Shares, and (ii) none of the Placement Agents nor any of their respective affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. ~~2.1.9~~ 2.1.10 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from ~~the Company, Holdings, or a representative~~ either one of the ~~Company~~ Placement Agents or ~~Holdings, or (b) directly from~~ the ~~Company~~ Issuer as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer or its representatives (including any of the Placement Agents), and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ such Placement Agent or the ~~Company or Holdings~~Issuer. Subscriber did not become aware of this offering of the ~~Securities~~Shares, ~~nor~~ nor, to Subscriber’s knowledge, were the ~~Securities~~ Shares offered to ~~Subscriber,~~ Subscriber by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) assuming the representations and warranties of the Issuer are true and correct in all material respects, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of the Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the SPAC or the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security the exemptions from filing under FINRA Rule 5123(b)(1)(A)(C) or ~~securities~~ (J) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ 2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ 2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ 2.1.14 Subscriber, or its investment adviser, if applicable, hereby acknowledges and agrees that (i) each Placement Agent is acting solely as placement agent in connection with the offering of the Shares and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, the Issuer, the SPAC or any other person or entity in connection with the offering of the Shares, (ii) no Placement Agent has made any representation or warranty, whether express or implied, of any kind or character and has not provided any advice or recommendation in connection with the offering of the Shares, (iii) no Placement Agent will have any responsibility to Subscriber with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the Business Combination or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Issuer, the SPAC, or the offering of the Shares, and (iv) no Placement Agent shall have any liability or obligation (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the offering of the Shares. Subscriber acknowledges that the Placement Agents, affiliates of the Placement Agents and their respective officers, directors, employees and representatives may have acquired non-public information with respect to the Issuer or the SPAC which Subscriber agrees, subject to applicable law, need not be provided to it. 2.1.15 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Memic Innovative Surgery Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to ~~Subscriber~~Subscriber at the Closing, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ GOGN and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ ▇▇▇▇ as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in good standing (or such equivalent concept to the extent it exists under the laws of the jurisdiction of incorporation or formation) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its ~~obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s~~ obligations under this Subscription Agreement. 2.1.2 This Subscription Agreement (including the transactions contemplated herein) has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and GOGN, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) general principles of equity, whether considered at law or ~~equity~~equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 ~~Assuming the accuracy of the Company’s representations~~ The execution and ~~warranties as set forth in Section 2.2 hereof, the execution,~~ delivery ~~and performance by Subscriber~~ of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein (i) are fully consistent with Subscriber’s financial needs, objectives and condition, (ii) comply and are fully consistent with all investment policies, guidelines and other restrictions applicable to Subscriber and (iii) are a fit, proper and suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Shares. 2.1.4 The execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Shares and the consummation of the other transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, ~~charge~~ charge, or encumbrance upon any of the property or assets of ~~Subscriber or any of its subsidiaries~~ Subscriber, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license~~ license, or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to ~~have~~ have, individually or in the aggregate, a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole~~ability of, or ~~materially and adversely affect~~ prevents, impairs, delays or impedes the legal authority ~~or ability of~~ of, Subscriber to ~~comply~~ enter into and timely perform in ~~all~~ any material ~~respects with the terms of~~ respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of ~~Subscriber or any of its subsidiaries in any material respect;~~ Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, ~~rule~~ rule, regulation or ~~regulation~~ other legally enforceable requirement of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective~~ properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.5 Subscriber is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Subscription Agreement. 2.1.6 Subscriber is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) of Regulation D under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is ~~acquiring all~~ aware that this offering of the ~~Securities~~ Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (C) or (J)), (iii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iv) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (v) acquiring the Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~vi) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto, where such information provided shall be accurate and complete in all material respects). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. ~~2.1.5~~ 2.1.7 Subscriber is a sophisticated investor, experienced in investing in securities transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the purchase of the Shares. 2.1.8 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Shares have not been registered under the Securities ~~Act~~Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. By making the representations herein, Subscriber does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to assign, transfer or otherwise dispose of any of Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. ~~2.1.6~~ 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the ~~Company~~ Issuer, GOGN, the Company, BTIG, LLC (“BTIG”), Sprott Capital Partners LP (“Sprott”) (BTIG and Sprott each, a “Placement Agent” and, together, the “Placement Agents”), or any of ~~its officers~~ their respective affiliates or control persons, officers, directors, employees, agents, partners or representatives of any of the foregoing or any other person or entity (such persons, together with the Placement Agents, the “Non-Party Affiliates”), expressly or by implication, other than those representations, warranties, ~~covenants~~ covenants, and agreements ~~included~~ of GOGN and the Issuer expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those made by GOGN and the Issuer expressly set forth in this Subscription Agreement. ~~2.1.7~~ 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has no current plan or intention to dispose of or otherwise transfer the Shares and (iii) is under no binding agreement to dispose of or otherwise transfer the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan ~~Subscriber~~ Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable ~~similar law~~Similar Law (as defined below). ~~2.1.8~~ 2.1.12 In making its decision to subscribe for and purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and GOGN’s representations, ~~warranties~~warranties and agreements in Section 2.2 and Section 2.3 hereof, ~~and covenants~~ respectively. Without limiting the generality of the foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by any Non-Party Affiliate concerning the Issuer, GOGN, the Company ~~contained in~~ or the Shares, the offer and sale of the Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, GOGN, the Company, the offer and sale of the Shares, the Transactions or the other transactions contemplated by the Subscription Agreement and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had ~~the~~ an opportunity to review the documents ~~provided~~ made available to Subscriber by GOGN and the Company, including the Investor Presentation dated December 2022 (~~collectively,~~ the “Disclosure ~~Documents~~Package”~~): (i)~~ ), provided by GOGN and the ~~final prospectus of the Company, dated as of January 14, 2022~~ Company and ~~filed with~~ any such documents available on the Securities and Exchange ~~Commission~~ Commission’s (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed ~~necessary~~ necessary, without reliance on the Placement Agents, to make an investment decision with respect to the ~~Securities~~Shares and conducted and completed their own independent diligence concerning the Issuer, GOGN, the Company, the Shares, the offer and sale of the Shares, the Transactions and the other transactions contemplated by this Subscription Agreement. ~~The~~ Based upon such information as Subscriber ~~further~~ has deemed appropriate, Subscriber has independently made its own analysis and decision to subscribe for and purchase the Shares and enter into the transactions contemplated herein. Except for the representations, warranties and agreements of the Issuer and GOGN expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on its own sources of information, investment analysis and due diligence (including professional advice it deems appropriate) with respect to the Issuer, GOGN, the Company or the Shares, the offer and sale of the Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. 2.1.13 Subscriber acknowledges that neither the ~~information contained in~~ Placement Agents nor any of their affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Disclosure Documents is subject to change~~foregoing (collectively, ~~and that~~ “Representatives”) have made any ~~changes~~ independent investigation with respect to the Issuer, GOGN, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer, GOGN or the Company or any of their respective subsidiaries or affiliates. However, neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained ~~in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction~~herein, shall ~~in no way~~ modify, limit or otherwise affect Subscriber’s ~~obligation~~ right to ~~purchase~~ rely on the ~~Securities hereunder~~Issuer’s or GOGN’s representations, ~~except as otherwise provided herein~~warranties, covenants and ~~that, in purchasing the Securities, Subscriber is not relying upon any projections~~ agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the ~~Investor Presentation~~Placement Agents or any of the Placement Agents’ affiliates with respect to their decision to invest in the Shares, including information related to the Issuer, the Company, the Shares and the offer and sale of the Shares and (ii) neither the Placement Agents nor any of their affiliates have prepared any disclosure or offering document in connection with the offer and sale of the Shares. ~~2.1.9~~ 2.1.14 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, on the ~~Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company~~one hand, and the ~~Securities~~ Issuer, GOGN or their respective representatives (including the Placement Agents), on the other hand. The Shares were offered to Subscriber solely by such direct ~~contact between Subscriber and either the Company or Holdings~~contact. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities~~ Shares (i) were not offered to it by any form of general solicitation or general ~~advertising~~ advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, and (ii) are not being offered to it in a manner involving a public offering under, or or, to its knowledge, in a distribution in violation of, the Securities ~~Act,~~ Act or any ~~state~~ other applicable securities laws. ~~2.1.10~~ 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares, including those set forth in the GOGN SEC Documents (as defined below). Subscriber is a sophisticated institutional investor, is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision~~Shares. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters as to~~ shall be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment responsible for ~~Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss~~ any of Subscriber’s ~~investment in the Company. Subscriber further acknowledges specifically~~ tax liabilities that may arise as a ~~possibility~~ result of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated ~~hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed~~ by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dethis Subscript

Appears in 1 contract

Sources: Subscription Agreement (GoGreen Investments Corp)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ Bridgetown 2 as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and Bridgetown 2, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (where such Subscriber is an “employee benefit plan” under ERISA, subject to the assumption that the assets of the Issuer do not constitute “plan assets” under ERISA), (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on ~~the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (v) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares. Subscriber acknowledges that the offering meets the exemptions from filing under Financial Industry Regulatory Authority, Inc. (“FINRA”) Rule 5123(b)(1)(C) or (J). ~~If the~~ The information provided by Subscriber on Schedule I is ~~an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities~~true and correct in all respects. ~~2.1.5~~ (e) Together with its investment adviser, if applicable, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ offer and sale of the Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities Act ~~that is available~~ or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6 Subscriber understands and agrees that~~ (f) Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer or Bridgetown 2 or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ (g) Subscriber’s acquisition and holding of the Shares will not (where such Subscriber ~~represents and warrants~~ is an “employee benefit plan” under ERISA, subject to the assumption that (ithe assets of the Issuer do not constitute “plan assets” under ERISA) ~~it is not~~ constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8 In~~ (h) Together with its investment adviser if applicable, in making its decision to purchase the ~~Securities~~Shares, Subscriber ~~represents that it~~ has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and Bridgetown 2’s representations, ~~warranties~~warranties and agreements contained in Section 3.1 and Section 3.2, ~~and covenants~~ respectively. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone (including, without limitation, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the Issuer and Bridgetown 2 concerning the Issuer or Bridgetown 2, respectively, or the Shares or the offer and sale of the Shares. ~~Subscriber acknowledges and agrees that~~ Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), Bridgetown 2, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber ~~acknowledges that it~~ has received access to and has had ~~the~~ an adequate opportunity to review the documents ~~provided~~ made available to Subscriber by Bridgetown 2 and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber ~~represents~~ and ~~agrees that Subscriber and its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management questions,~~ such questions and receive such answers from Bridgetown 2 and ~~obtain~~ the Company or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares and have independently made their own analysis and decision to invest in the Shares. ~~The~~ Subscriber also acknowledges that the historical financial data concerning the Company and its subsidiaries, as well as the Malaysian and Thai assets of REA which are the subject of a pending sale to the Company (the “REA Assets”), have been derived based on the Company’s and its subsidiaries management accounts (and in the case of the REA Assets, the management accounts of REA) in accordance with International Financial Reporting Standards, or IFRS, and has not been reviewed or audited in accordance with PCAOB standards. There can be no assurance that the Company’s or Bridgetown 2’s audited or reviewed results, or those relating to the REA Assets, for the relevant financial years and periods will not differ from the financial data presented to Subscriber and such changes could be material. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and Bridgetown 2 expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Issuer Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries or relating to the REA Assets, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. Subscriber expressly acknowledges that the closing of the sale and purchase of the REA Assets (the “REA Closing”) is subject to the satisfaction of certain closing conditions (the “REA CPs”), including REA’s divestment of its 27% interest in 99 Group (the operator of the websites ▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇) and the REA Closing may therefore not occur. Subscriber acknowledges that the status of the REA CPs or the failure of the REA Closing to be consummated shall not affect Subscriber’s obligations under this Subscription Agreement. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Company in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection with the Subscription; (iii) certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the ~~Disclosure Documents is subject~~ projections. Subscriber acknowledges and agrees that such information and projections were prepared without the participation of the Placement Agents or Bridgetown 2 and that neither the Placement Agents nor Bridgetown 2 assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections; (iv) the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to ~~change~~the Issuer, Bridgetown 2 or the Shares or the accuracy, completeness or adequacy of any information supplied to it by the Issuer or Bridgetown 2; (v) Subscriber has not relied on any statement, representation, warranty or information made or provided by the Placement Agents, or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing, with respect to its decision to invest in the Shares, and ~~that~~ the Placement Agents will have no responsibility with respect to (A) any ~~changes to~~ representations, warranties or agreements made by any person or entity under or in connection with the ~~information contained in the Disclosure Documents, including~~ Subscription or any ~~changes based on updated information or changes in terms~~ of the ~~Transaction~~documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Group or the Subscription; and (vi) neither the Placement Agents nor any of their respective affiliates, subsidiaries, directors, officers, agents or employees shall have any liability (including for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, Bridgetown 2 or the Company or any other person or entity), whether in ~~no way affect~~ contract, tort or otherwise, to Subscriber~~’s obligation~~ , or to ~~purchase the Securities hereunder, except as otherwise provided herein, and that~~any person claiming through Subscriber, in ~~purchasing~~ respect of the ~~Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~Subscription. ~~2.1.9~~ (j) Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company~~Placement Agents, ~~Holdings,~~ the Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company~~ Bridgetown 2 as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Commission under the Securities Act) with the ~~Company~~Issuer, Bridgetown 2 or their representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents, the Issuer or ~~Holdings~~Bridgetown 2. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deno

Appears in 1 contract

Sources: Business Combination Agreement (PropertyGuru Group LTD)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ HPX and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ HPX as follows: ~~2.1.1~~ (a) Subscriber has been duly formed or incorporated and is validly existing ~~and~~ and, where such concept is recognized, in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ (b) This Subscription Agreement has been duly authorized, approved by all necessary action, validly executed and delivered by Subscriber. If The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is ~~an individual~~fully consistent with all investment policies, guidelines and other restrictions applicable to the ~~signature on~~ Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and HPX, this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ (c) The execution, delivery and performance ~~by Subscriber~~ of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated ~~herein~~ herein, including the Transactions, do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, ~~which~~ that would reasonably be expected to ~~have a material adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and~~ adversely affect the ~~legal authority or~~ Subscriber’s ability ~~of Subscriber~~ to ~~comply in all material respects with the terms of~~ acquire and hold Shares and to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (iA) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3), (7), (9) or (12) of Regulation D under the Securities Act), in ~~each case,~~ either case satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such accountI, and ~~the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such~~ an “institutional account” as defined in FINRA Rule 4512(c), and (iii) is acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the laws of any jurisdiction (and shall provide the requested information set forth on Schedule A). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities. 2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, or (ii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Securities directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”)Shares, (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. 2.1.9 Subscriber became aware of this offering of the Securities solely (a) by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (iB) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or ~~securities and~~ securities, (iiC) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares, (D) is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring its entire beneficial interest in the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction, (E) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule I following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Shares, and (F) acknowledges that the offering meets the exemptions from filing under FINRA Rules 5123(b)(1)(A), (C) and (J); (ii) Subscriber is located outside the United States and not a U.S. person, (A) Subscriber is acquiring the Shares in an "offshore transaction" meeting the requirements of Rule 903 of Regulation S under the Securities Act, (B) Subscriber understands that the offering meets the exemptions from filing under FINRA Rule 5123(c), (C) Subscriber is are aware that the sale to it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the Securities Act, and the Subscriber and the person, if any, for whose account or benefit the Subscriber is acquiring the Shares was located outside the United States and was not a U.S. person at the time (x) the offer was made to it and (y) when the buy order for such Shares was originated, and continues to be located outside the United States and not to be a U.S. person and has not purchased such Shares for the account or benefit of any person located in the United States or who is a U.S. person, or entered into any arrangement for the transfer of such Shares or any economic interest therein to any person located in the United States or any U.S. person, and (D) Subscriber is authorized to consummate the purchase of the Shares offered pursuant to this Subscription in compliance with all applicable laws and regulations of the jurisdiction where such sales are to be made; (iii) Subscriber is resident in a member state of the European Economic Area, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”); and (v) Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or resident in a jurisdiction other than the Federative Republic of Brazil, and able to hold securities and engage in financial settlement of securities transactions with funds held in the United States. The information provided by Subscriber on Schedule I is true and correct in all respects. ~~2.1.11~~ (e) Together with its investment adviser, if applicable, Subscriber ~~represents~~ understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act or the Brazilian Offering Regulations, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the offer and sale of the Shares have not been registered under the Securities Act, the Brazilian Offering Regulations or any other applicable securities laws. Subscriber understands that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act or in a transaction not subject thereto, and in each case, in accordance with any applicable securities laws of the states and other jurisdictions where such offers and sales are made, and that any book entries or certificates representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber ~~has such knowledge~~ understands and ~~experience in financial and business matters~~ agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to ~~be capable of evaluating the merits and risks~~ readily offer, resell, transfer or pledge or otherwise dispose of the ~~investment in~~ Shares and may be required to bear the ~~Securities, has analyzed and fully considered the risks~~ financial risk of an investment in the ~~Securities and determined~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, transfer or disposition of any of the ~~Securities are a suitable investment for Subscriber and that~~ Shares. (f) Subscriber is ~~able at this time and in~~ purchasing the ~~foreseeable future to bear~~ Shares directly from the ~~economic risk of a total loss of Subscriber’s investment in the Company~~Issuer. Subscriber further acknowledges ~~specifically~~ that ~~a possibility of total loss of investment exists. 2.1.12~~ there have been no representations, warranties, covenants, statements or agreements made to Subscriber ~~understands and agrees that no federal~~ by or ~~state agency has passed upon or endorsed the merits~~ on behalf of the ~~offering~~ Issuer or HPX or any of their respective affiliates, officers or directors, employees, partners, agents or representatives, or any other party to the Transactions or any other person or entity (including the Placement Agents), expressly or by implication (including by omission), other than those representations, warranties, covenants, statements and agreements of the ~~Securities or made any findings or determination as to the fairness of~~ Issuer and HPX expressly set forth in this ~~investment. 2.1.13 Subscriber represents~~ Subscription Agreement, and ~~warrants that~~ Subscriber is not relying on any representations, warranties, covenants, statements or agreements other than those expressly set forth in this Subscription Agreement. (ig) ~~a person or entity named on~~ Subject to the ~~List~~ assumption that the assets of ~~Specially Designated Nationals and Blocked Persons,~~ the ~~Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by~~ Issuer do not constitute “plan assets” under the U.S. ~~Treasury Department’s Office~~ Employee Retirement Income Security Act of ~~Foreign Assets Control~~ 1974, as amended (“~~OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List~~ERISA”), if Subscriber is or ~~a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or~~ is acting on behalf ofof an employee benefit plan that is subject to Title I of ERISA, a ~~person~~plan, an individual retirement account or other arrangement that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership section 4975 of the ~~securities~~ U.S. Internal Revenue Code of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 19341986, as amended (the “~~Exchange Act~~Code”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person an employee benefit plan that is a governmental plan (as defined in ~~31 C.F.R. Part 800.224~~section 3(32) ~~in which the national or subnational governments~~ of ERISA), a ~~single foreign state have a substantial interest~~ church plan (as dedefined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing, but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (“Similar Law”), or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code or Similar Law (each, a “Plan”), Subscriber represents and warrants that its acquisition and holding of Shares do not and will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Code, or under Similar Law or otherwise violate the provisions thereunder. (h) Together with its investment adviser if applicable, in making its decision to purchase the Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and each of the Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the generality of the foregoing, Subscriber is not relying upon, and has not relied upon, any statements, representation or warranty or other information provided by anyone (including HPX, the Issuer, the Company, the Placement Agents, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing) other than the representations and warranties of the Issuer and HPX expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Issuer or any of its affiliates and consolidated affiliated entities (together with the Issuer, the “Group”), HPX, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. Subscriber has received access to and has had an adequate opportunity to review the documents made available to Subscriber by HPX and the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions and receive such answers from HPX and the Issuer or any person or persons acting on their behalf concerning the terms and conditions of an investment in the Shares, have obtained such materials or information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares and have independently made their own analysis and decision to invest in the Shares. Based on such information as Subscriber has deemed appropriate and without reliance upon any Placement Agent, Subscriber has independently made his/her/its own analysis and decision to enter into the Subscription. Subscriber acknowledges that no disclosure or offering document has been prepared in connection with the offer and sale of the Shares. Except for the representations, warranties and agreements of the Issuer and HPX expressly set forth in this Subscription Agreement, Subscriber is relying exclusively on his/her/its own sources of information, investment analysis and the due diligence (including professional advice Subscriber deems appropriate) with respect to the Subscription, the Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer or the Company and its subsidiaries, including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters. Subscriber further acknowledges that the information provided to Subscriber is preliminary and subject to change. (i) Subscriber acknowledges and agrees that: (i) each of the Placement Agents is acting solely as the Issuer’s placement agent in connection with the Subscription and each Placement Agent may have affiliates that act as an advisor to the Issuer, the Company or any other person or entity in connection with the Transactions; none of the Placement Agents is acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for Subscriber, HPX or any other person or entity in connection with the Subscription; (ii) neither the Placement Agents nor any of their respective directors, officers, employees, advisors, representatives and controlling persons have made, nor will any of such persons make, any representation or warranty, whether express or implied, of any kind or character nor have any such persons provided any advice or recommendation in connection

Appears in 1 contract

Sources: Subscription Agreement (HPX Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer, RMG II and ~~Holdings~~ the Placement Agents (as defined below) and acknowledges and agrees with the ~~Company~~ Issuer and ~~Holdings~~ RMG II as follows: ~~2.1.1~~ a) Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ b) This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and RMG II, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ c) The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber~~ Subscriber’s ability to enter into and timely perform its ~~subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of~~ obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (ii) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI, (ii) if resident in a member state of the European Economic Area, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “EU Prospectus Regulation”), (iii) if resident in the United Kingdom, is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “UK Prospectus Regulation”), (iv) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a “qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such ~~account,~~ account and (~~iii~~v) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule ~~A). If~~ I following the ~~Subscriber is an entity, the Subscriber~~ signature page hereto) and is not ~~an entity formed for~~ a party to or bound by a binding commitment to sell or otherwise dispose of the ~~specific purpose of acquiring~~ Shares. Subscriber acknowledges that the ~~Securities~~offering meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). ~~2.1.5~~ e) Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act~~ Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to the foregoing transfer restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. ~~2.1.6~~ f) Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the Issuer, RMG II, the Company or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. ~~2.1.7~~ g) Subscriber represents and warrants that ~~(i) it is~~ its acquisition and holding of the Shares will not constitute or result in a ~~Benefit Plan Subscriber as contemplated by~~ non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA,~~ Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. ~~2.1.8~~ h) In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and each of the Issuer’s and RMG II’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer and RMG II concerning the Issuer or RMG II or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, RMG II, the Company and the Transactions and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by RMG II and the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares. Subscriber acknowledges that each of BofA Securities, Inc. (“BofA”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) (the “Placement Agents”, each a “Placement Agent”) and each of their respective directors, officers, employees, representatives and controlling persons have not prepared any disclosure or offering document in connection with the offer and sale of the Shares and have made no independent investigation with respect to the Issuer, RMG II, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer, RMG II or the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents, or any affiliate of a Placement Agent, with respect to its decision to invest in the Shares, including information related to the Issuer, RMG II, the Company, the Shares and the offer and sale of the Shares. Subscriber further acknowledges that the information ~~contained in the Disclosure Documents~~ provided to Subscriber is preliminary and subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation. ~~2.1.9~~ i) Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from either the ~~Company~~Placement Agents, ~~Holdings,~~ the Issuer or ~~a representative of the Company or Holdings, or (b) directly from the Company~~ RMG II as a result of a pre-~~existing, substantial~~ existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the ~~Company~~Issuer, RMG II or their representatives, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Placement Agents, the Issuer or ~~Holdings~~RMG II. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants~~ Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. ~~2.1.10~~ j) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that (A) it (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (iiiii) has exercised independent judgment in evaluating its participation in the purchase of the ~~Securities~~Shares and (B) the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b). ~~2.1.11~~ k) Subscriber represents and acknowledges that ~~Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities~~Subscriber, alone, or together with any professional advisor(s), has analyzed and ~~fully~~ considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. ~~2.1.12~~ l) Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. ~~2.1.13~~ m) Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell ~~bank (collectively, a “Prohibited Investor”)~~bank. Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided, ~~provided~~ that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC ~~sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. ~~2.1.14 On~~ n) If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the ~~date~~ Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the ~~Purchase Price will~~ foregoing but may be ~~required~~ subject to ~~be funded pursuant~~ provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to ~~Section 3.1~~such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber ~~will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber~~ represents and warrants that ~~no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or~~ neither Issuer, nor any of its ~~Rule 506(d~~respective affiliates (the “Transaction Parties”) ~~Related~~ has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties (shall at any time be relied upon as ~~defined below)~~the Plan’s fiduciary with respect to any decision to acquire, ~~except, if applicable, for a Disqualification Event as~~ continue to ~~which Rule 506(d)(2)(ii)~~ hold or ~~(iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify~~ transfer the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities ActShares. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 o) Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of ~~the securities of the Company~~ RMG II’s ordinary shares prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as decurrent

Appears in 1 contract

Sources: Subscription Agreement (RMG Acquisition Corp. II)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to the Company and ~~Holdings~~ acknowledges and agrees with the ~~Company~~ Company, as of the date hereof and ~~Holdings~~ as of the Subscription Closing Date, as follows: ~~2.1.1~~ 3.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 3.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company and the Sponsor, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 3.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), the issuance by the Company of the Subscribed Shares to Subscriber and the consummation of the transactions contemplated herein do not and will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~c) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 3.1.4. Subscriber (a) is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities ~~Act~~Act (“Accredited Investor”), (ii) an Institutional Account as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”) and (iii) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB or an Accredited Investor who is investing in the Subscribed Shares, (iib) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own ~~account~~ or for its controlled affiliate(s)’s account(s) and not for the account of others, or if the Subscriber, or the investment advisor to which Subscriber has delegated decision making authority over its investments, is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such accountany other third party, and (~~iii~~c) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and is not acquiring the ~~Securities for investment purposes only and not~~ Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto) and is not a party to or bound by a binding commitment to sell or otherwise dispose of the Subscribed Shares. Accordingly, Subscriber understands that the offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 3.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (ia) to the Company or a subsidiary thereof, (b) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iic) pursuant to another applicable exemption ~~from~~ from, or in a transaction not subject to, the registration requirements of the Securities ~~Act that is available~~ Act, and in each case, in accordance with any other applicable securities laws, and that ~~any book entries representing~~ the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act, are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom and (ii) shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 3.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Company, the Sponsor or any of ~~its officers~~ their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission3.1.7. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Company~~’s management questions~~, receive such ~~answers~~ answers, including on the financial information, and obtain such information directly as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares and Subscriber has independently made its own analysis and decision to invest in the Subscribed Shares. ~~The~~ Subscriber ~~further~~ acknowledges that no disclosure or offering document has been prepared in connection with the ~~information contained~~ offer and sale of the Subscription Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company and its subsidiaries including but not limited to all business, legal, regulatory, accounting, financial, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationSubscribed Shares. ~~2.1.9~~ 3.1.8. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber, the ~~Company~~Sponsor, ~~Holdings, or a representative of~~ the Company or ~~Holdings, or (b) directly from the Company as a result~~ one of ~~a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings~~their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the ~~Company represents and warrants that the Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising~~ advertising, including methods described in section 502(c) of Regulation D under the Securities Act, and ~~(ii)~~ are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities ~~laws~~law. ~~2.1.10~~ 3.1.9. Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~purchase~~ subscription and ownership of the ~~Securities~~Subscribed Shares and is able to fend for itself in the transactions contemplated herein. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares, and Subscriber has been offered the opportunity to ask questions of the Company and received answers thereto, including on the financial information, as Subscriber deemed necessary in connection with its decision to purchase the Subscribed Shares, and has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Subscribed Shares. Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber ~~has such knowledge and experience in financial and business matters as to~~ shall be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment responsible for ~~Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss~~ any of Subscriber’s ~~investment in~~ tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither the Company~~. Subscriber further acknowledges specifically that a possibility~~ , nor any of ~~total loss~~ its agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of ~~investment exists~~the transactions contemplated by this Subscription Agreement. ~~2.1.12~~ 3.1.10. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Subscribed Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Subscribed Shares and the foregoing authorities have not confirmed the accuracy or determined the adequacy of any representation (and any representation to the contrary is a criminal offense). ~~2.1.13~~ 3.1.11. Subscriber represents and warrants that none of Subscriber nor, to Subscriber’s knowledge, any of its officers or directors is ~~not~~ (ia) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC or any similar list of sanctioned persons administered by the United Nations, the United Kingdom, the European Union or any individual European Union member state (collectively, “~~OFAC List~~Sanctions Lists”), ) or a person or entity ~~prohibited by~~ that is otherwise the target of any OFAC sanctions program, (iib) directly or indirectly owned (50% or more) or controlled by, or acting on behalf of, one or more persons on a ~~person, that is named on an OFAC~~ Sanctions List; (~~iii~~c) organized, incorporated, established, located, or resident ~~or born~~ in, or ~~a citizen, national, or~~ the ~~government,~~ government of (including any political subdivision, agency, or instrumentality thereof~~, of~~ ) any country or territory ~~embargoed or subject to substantial trade restrictions by~~ that is the ~~United States~~target of comprehensive sanctions (currently Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic); (ivd) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part ~~515,~~ 515 or (ve) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable3.1.12. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the ~~Company~~Company or its affiliates. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Backstop Subscription Agreement (VinFast Auto Ltd.)

Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the Company and ~~Holdings and~~ agrees with the Company ~~and Holdings~~ as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement ~~constitutes a valid and binding obligation of Subscriber,~~ is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein ~~do not and~~ will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, ~~shareholders~~stockholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a ~~whole~~whole (a “Subscriber Material Adverse Effect”), or materially ~~and adversely~~ affect the legal authority ~~or ability~~ of Subscriber to comply in all material respects with the terms of this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”)~~Agreement; (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its ~~subsidiaries in any material respect~~subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a the Subscriber Material Adverse ~~Effect~~Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AA following the signature page hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets the exemptions from filing under FINRA Rule 5123(b)(1)(C) or (J). 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the ~~Securities except (i)~~ Shares or an opinion of counsel satisfactory to the Company ~~or a subsidiary thereof, or (ii) pursuant to another~~ that such registration statement is not required and an applicable exemption from the registration requirements of the Securities Act ~~that~~ is ~~available~~ available, and that any certificates or book entries representing the ~~Securities~~ Shares shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Shares will be subject to ~~the foregoing~~ transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company or any of its officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement~~, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement~~. 2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan ~~Subscriber~~ Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ~~ERISA~~the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~Subscriber and the representations, warranties, and covenants of the Company contained in this Subscription Agreement~~Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents provided to the Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission. The Subscriber represents and agrees that the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such answers and obtain such information as the Subscriber and ~~its~~ the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Shares. The Subscriber ~~further~~ acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of R▇▇▇ Capital Partners, LLC or C▇▇▇▇-▇▇▇▇▇▇ Capital Group LLC (collectively, the “Placement Agents”) and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information ~~contained~~ supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the ~~Disclosure Documents~~ Shares, including information related to the Company, the Shares and the offer and sale of the Shares. The information provided to the Subscriber is preliminary and subject to change, and that any changes to ~~the information contained in the Disclosure Documents~~such information, ~~including~~ including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect the Subscriber’s obligation to purchase the ~~Securities~~ Shares hereunder~~, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor Presentation~~. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from the ~~Company, Holdings,~~ Placement Agents or ~~a representative of the Company or Holdings, or (b)~~ directly from the Company as a result of a pre-~~existing~~exiting, substantial relationship with the Company, and the ~~Securities~~ Shares were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ any of the ~~Company~~ Placement Agents or ~~Holdings~~the Company. Subscriber did not become aware of this offering of the ~~Securities~~Shares, nor were the ~~Securities~~ Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Placement Agents have not acted as its financial advisor or fiduciary. Subscriber acknowledges that the Company represents and warrants that the ~~Securities~~ Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the ~~Securities~~Shares, has adequately analyzed and fully considered the risks of an investment in the ~~Securities~~ Shares and determined that the ~~Securities~~ Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment ~~exists~~exists and that it is able to fend for itself in the transactions contemplated herein. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked ~~Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is~~ Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (viii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List~~, and to otherwise ensure compliance with OFAC-administered sanctions programs~~. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On Subscriber has, and at the ~~date the Purchase Price~~ Closing will ~~be required to be funded pursuant to Section 3.1~~have, ~~Subscriber will have~~ sufficient ~~immediately available~~ funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as de

Appears in 1 contract

Sources: Subscription Agreement (Mountain Crest Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities to Subscriber~~Subscribed Shares, Subscriber hereby represents and warrants to each of the Issuer and the Company and ~~Holdings~~ acknowledges and agrees with each of the ~~Company~~ Issuer and ~~Holdings~~ the Company, as of the date hereof and as of the Subscription Closing Date, as follows: ~~2.1.1~~ 2.1.1. Subscriber has been duly formed or incorporated and is validly existing ~~and~~ in good standing (if the concept of good standing is applicable) under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement~~. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement~~. ~~2.1.2~~ 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. ~~If Subscriber is an individual~~Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and the Company, ~~the signature on~~ this Subscription Agreement is ~~genuine, and Subscriber has legal competence and capacity to execute~~ the ~~same. This Subscription Agreement constitutes a~~ valid and binding obligation of Subscriber, and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (ia) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (iib) principles of equity, whether considered at law or equity. ~~2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ 2.1.3. The execution, delivery and performance by Subscriber of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), the issuance by the Issuer of the Subscribed Shares to Subscriber and the consummation of the transactions contemplated herein do not and will not (ia) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries, as applicable, is a party or by which Subscriber or any of its subsidiaries, as applicable, is bound or to which any of the property or assets of Subscriber or any of its subsidiaries, as applicable, is subject, which would reasonably be expected to have a material adverse effect on the ~~business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the~~ legal authority ~~or ability~~ of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”); , (iib) ~~if Subscriber is not an individual,~~ result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries ~~in any material respect;~~ or (~~iii~~c) result in any violation of any statute or any judgment, order, rule or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries~~ subsidiaries, as applicable, or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. ~~2.1.4 The~~ 2.1.4. Subscriber (a) is (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule ~~501(a~~501(a)(1), (2), (3) or (7) under the Securities ~~Act~~Act (“Accredited Investor”), (ii) an Institutional Account as defined in Rule 4512(c) of the Financial Industry Regulatory Authority (“FINRA”) and (iii) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule AI, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB or an Accredited Investor who is investing in the Subscribed Shares, (iib) is acquiring ~~all of~~ the ~~Securities~~ Subscribed Shares only for ~~his, her or~~ its own ~~account~~ or for its controlled affiliate(s)’s account(s) and not for the account of ~~others~~any other third party, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Subscribed Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties and agreements herein on behalf of each owner of each such account, ~~and (iii) is acquiring the Securities~~ for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (c) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or ~~the~~ any other securities laws of the United States or any other jurisdiction (and shall provide the requested information ~~set forth~~ on Schedule AI following the signature page hereto). If Accordingly, Subscriber understands that the ~~Subscriber is an entity,~~ offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~2.1.5~~ 2.1.5. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities ~~Act and~~ Act, that the sale to Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares have not been registered under the Securities ~~Act~~Act or any other applicable securities laws. Except in respect of any stock lending program, Subscriber understands ~~and agrees~~ that the ~~Securities~~ Subscribed Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (ia) to the ~~Company~~ Issuer or a subsidiary thereof, (b) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iic) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each case, in accordance with any other applicable securities laws, and that ~~any book entries representing~~ the Subscribed Shares (i) will be “restricted securities” within the meaning of Rule 144 under the Securities Act, are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Securities Act and applicable state securities laws, pursuant to registration or exemption therefrom and (ii) shall ~~contain~~ be subject to a ~~restrictive~~ legend to such ~~effect~~effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the ~~Securities~~ Subscribed Shares will be subject to the foregoing ~~transfer~~ restrictions and, as a ~~result of these transfer restrictions~~result, Subscriber may not be able to readily resell the ~~Securities~~ Subscribed Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ independent legal counsel prior to making any offer, resale, ~~transfer,~~ pledge or ~~other disposition~~ transfer of any of the ~~Securities~~Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares. ~~2.1.6~~ 2.1.6. Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Subscribed Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants ~~and~~ or agreements made to Subscriber by the ~~Company~~ Issuer, the Company, or any of ~~its officers~~ their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements ~~included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those~~ expressly set forth in this Subscription Agreement. Subscriber further acknowledges that certain information provided to it was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. ~~2.1.7~~ 2.1.7. If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any other applicable federal, state, local, non-U.S. or other laws or regulations that are similar ~~law~~to such provisions of ERISA or the Code (collectively, “Similar Laws”). ~~2.1.8~~ 2.1.8. In making its decision to purchase the ~~Securities~~Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, ~~warranties,~~ warranties and covenants of the Issuer and the Company ~~contained~~ expressly set forth in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it is not relying upon, and has ~~had the opportunity to review the documents~~ not relied on any representations, warranties, statements or other information provided ~~to Subscriber~~ by ~~the Company~~anyone (including Citigroup Global Markets Inc. and Barclays Capital Inc., ~~including (collectively~~collectively in their capacity as placement agents, the “~~Disclosure Documents~~Placement Agents”~~): (i~~) ~~the final prospectus~~ or any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the ~~Company~~foregoing). Subscriber acknowledges that no disclosure or offering document has been prepared by the Placement Agents or any of their respective affiliates or any control persons, ~~dated as~~ officers, directors, employees, partners, agents or representatives of ~~January 14, 2022 and filed~~ any of the foregoing in connection with the ~~Securities~~ offer and ~~Exchange Commission (~~sale of the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of which will be filed by the Company with the CommissionSubscribed Shares. Subscriber ~~represents~~ acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares, the Issuer and the Company. Subscriber further acknowledges and agrees that Subscriber and its professional advisor(s), if any, have received, had access to and have had an adequate opportunity to review such information as Subscriber and its professional advisor(s) have deemed necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, the Company and the Transactions and that such information is preliminary and subject to change and that none of the Issuer, the Company or the Placement Agents or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Issuer and the Company~~’s management questions~~, receive such ~~answers~~ answers, including on the financial information, and obtain such information directly as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the ~~Securities~~Subscribed Shares. ~~The~~ Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, and the Company including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Subscribed Shares. 2.1.9. Subscriber acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, in each case, to Subscriber (c) the Placement Agents will have no responsibility to Subscriber with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, the Company or the Transactions, and (d) neither the Placement Agents nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing shall have any liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber or any Other Subscriber, or to any person claiming through Subscriber or any Other Subscriber, in respect of the Transactions or pursuant to this Subscription Agreement or any Other Subscription Agreement related to the private placement of the Issuer Class A Ordinary Shares, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby, for any action heretofore or hereafter taken or omitted to be taken by either of them in connection with the purchase of the Subscribed Shares. Subscriber further acknowledges that ~~the information contained in the Disclosure Documents~~ Barclays Capital Inc. is ~~subject to change, and that any changes~~ acting as an M&A financial advisor to the ~~information contained~~ Issuer and each Placement Agent is acting as a capital markets advisor to the Issuer in connection with the ~~Disclosure Documents, including~~ Transactions. The Issuer and the Company are solely responsible for paying any ~~changes based on updated information~~ fees or ~~changes~~ other commission owed to the Placement Agents in ~~terms~~ connection with the Transactions. 2.1.10. Subscriber acknowledges that none of the ~~Transaction~~Placement Agents, ~~shall in no way affect Subscriber’s obligation~~ nor any of their respective affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to ~~purchase~~ the ~~Securities hereunder~~Issuer, ~~except as otherwise provided herein~~the Company, ~~and that~~any of their respective subsidiaries or any of their respective businesses, ~~in purchasing~~ or the ~~Securities~~Subscribed Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber ~~is not relying upon any projections contained in~~ by the ~~Investor Presentation~~Issuer or the Company. ~~2.1.9~~ 2.1.11. Subscriber became aware of this offering of the ~~Securities~~ Subscribed Shares solely ~~(a)~~ by means of direct contact ~~from~~ between Subscriber and the ~~Company~~Issuer, ~~Holdings, or a representative of~~ the Company or ~~Holdings, or (b) directly from the Company as a result~~ one of ~~a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or Holdings~~their respective representatives. Subscriber did not become aware of this offering of the ~~Securities~~Subscribed Shares, nor were the ~~Securities~~ Subscribed Shares offered to Subscriber, by any ~~other means~~general solicitation. Subscriber acknowledges that the ~~Company~~ Issuer represents and warrants that the ~~Securities (i)~~ Subscribed Shares were not offered by any form of general solicitation or general ~~advertising and (ii) are not being offered in a manner involving a public offering under~~advertising, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. 2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived. 2.1.14 On the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company. 2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as deincl

Appears in 1 contract

Sources: Subscription Agreement (Provident Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. To induce the ~~Company~~ Issuer to issue the ~~Securities~~ Shares to Subscriber, Subscriber hereby represents and warrants to the ~~Company~~ Issuer and ~~Holdings~~ acknowledges and agrees with the ~~Company and Holdings~~ Issuer as follows: 2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, ~~deliver~~ deliver, and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, ~~deliver~~ deliver, and perform ~~Subscriber’s~~ its obligations under this Subscription Agreement. 2.1.2 ~~This~~ If Subscriber is not an individual, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. ~~This~~ Assuming that this Subscription Agreement constitutes a the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of ~~Subscriber,~~ Subscriber and is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~moratorium~~ moratorium, or other laws relating to or affecting the rights of creditors ~~generally,~~ generally and (ii) principles of equity, whether considered at law or equity. 2.1.3 ~~Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof, the~~ The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, ~~charge~~ charge, or encumbrance upon any of the property or assets of Subscriber ~~or any of its subsidiaries~~ pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, ~~license~~ license, or other agreement or instrument to which Subscriber is a ~~party~~ party, or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which ~~would~~ would, in each case, reasonably be expected to have a ~~material~~ materially adverse effect on the business, properties, financial condition, shareholders’ equity or results of operations of Subscriber and its subsidiaries, taken as a whole, or materially and adversely affect the legal authority or ability of Subscriber to ~~comply in all material respects with the terms of~~ enter into and timely perform its obligations under this Subscription ~~Agreement (a “Subscriber Material Adverse Effect”);~~ Agreement, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or ~~any of its subsidiaries in any material respect; or~~ (iii) result in any violation of any statute or any judgment, order, ~~rule~~ rule, or regulation of any court or ~~government~~ governmental agency or ~~governmental~~body, ~~tribunal, judicial, administrative federal, state, local,~~ domestic or ~~foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”)~~foreign, having jurisdiction over Subscriber or any of its ~~subsidiaries or any of their respective properties that would~~ properties, which would, in each case, reasonably be expected to have a materially adverse effect on the ability of Subscriber ~~Material Adverse Effect~~to enter into and timely perform its obligations under this Subscription Agreement. 2.1.4 ~~The~~ Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act~~), in each case,~~ ) satisfying the applicable requirements set forth on Schedule AI attached hereto, (ii) is an institutional account as defined in FINRA Rule 4512(c), (iii) is acquiring ~~all of~~ the ~~Securities~~ Shares only for ~~his, her or~~ its own account or for beneficiaries portfolio under its management and not for the account of others, or if ~~the Subscriber, or the investment advisor to which~~ Subscriber ~~has delegated decision making authority over its investments,~~ is subscribing for the ~~Securities~~ Shares as a fiduciary or agent for one or more ~~investment~~ investor accounts, ~~the~~ each owner of such account is a qualified institutional buyer, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, ~~representations~~ representations, warranties, and agreements herein on behalf of each owner of each such account, and (~~iii~~iv) is not acquiring the ~~Securities for investment purposes only and not~~ Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act ~~or the laws of any jurisdiction~~ (and shall provide the requested information ~~set forth~~ on Schedule AI attached hereto). ~~If the Subscriber is an entity, the~~ Subscriber is not an entity formed for the specific purpose of acquiring the ~~Securities~~Shares. 2.1.5 Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~Securities~~ Shares have not been registered under the Securities Act. Subscriber understands ~~and agrees~~ that the ~~Securities~~ Shares may not be resold, transferred, ~~pledged~~ pledged, or otherwise disposed of by Subscriber absent an effective registration statement under the Securities ~~Act with respect to the Securities~~ Act, except (i) to the ~~Company~~ Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act, or (iiiii) pursuant to another applicable exemption from the registration requirements of the Securities ~~Act that is available~~ Act, and in each of cases (i) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any book entries representing the ~~Securities~~ Shares (if any) shall contain a ~~restrictive~~ legend to such effect. Subscriber ~~understands and agrees~~ acknowledges that the ~~Securities~~ Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that ~~the Securities will be subject to the foregoing transfer restrictions and,~~ as a result of ~~these~~ the transfer ~~restrictions~~restrictions described herein, Subscriber may not be able to readily resell the ~~Securities~~ Shares and may be required to bear the financial risk of an investment in the ~~Securities~~ Shares for an indefinite period of time. Subscriber understands that it has been advised to consult ~~legal, tax and accounting~~ legal counsel prior to making any offer, resale, ~~transfer~~pledge, ~~pledge~~ or ~~other disposition~~ transfer of any of the ~~Securities~~Shares. 2.1.6 Subscriber understands and agrees that Subscriber is purchasing the ~~Securities~~ Shares directly from the ~~Company~~Issuer. Subscriber further acknowledges that there have been no representations, warranties, ~~covenants and~~ covenants, or agreements made to Subscriber by the ~~Company~~ Issuer, the Company, the Placement Agents (as defined below) or any of ~~its~~ their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, ~~covenants~~ covenants, and agreements ~~included~~ expressly set forth in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber ~~represents and warrants~~ is an employee benefit plan that ~~(i) it~~ is ~~not a Benefit Plan Subscriber as contemplated by~~ subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ~~or (ii)~~ Subscriber represents and warrants that its acquisition and holding of the ~~Securities~~ Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as ~~amended~~amended (the “Code”), or any applicable similar law. 2.1.8 In making its decision to purchase the ~~Securities~~Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Issuer’s representations, ~~warranties,~~ warranties and ~~covenants~~ agreements in Section 2.2 hereof. Without limiting the generality of the ~~Company contained in this Subscription Agreement~~foregoing, Subscriber has not relied on any statements or other information provided by anyone other than the Issuer concerning the Issuer or the Shares or the offer and sale of the Shares. Subscriber acknowledges and agrees that Subscriber has received access to and has had an adequate opportunity to ~~review,~~ review such ~~financial and other~~ information as Subscriber deems necessary in order to make an investment decision with respect to the ~~Securities~~ Shares, including with respect to the Issuer, the Company, and the Transactions and has made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the ~~Securities~~Shares. ~~Without limiting the generality of the foregoing,~~ Subscriber acknowledges that it has ~~had the opportunity to review~~ reviewed the documents ~~provided~~ made available to the Subscriber by the ~~Company, including (collectively,~~ Company in the ~~“Disclosure Documents”): (i) the final prospectus~~ virtual dataroom as of the Company, dated as of January 14, 2022 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-261822) (the “Prospectus”), (ii) each SEC Document (as defined below) through the date ~~of this Subscription Agreement, and (iii) the Transaction Agreement, a copy of~~ hereof to which ~~will be filed by the Company with the Commission~~Subscriber has been granted access. Subscriber represents and agrees that Subscriber and ~~its~~ Subscriber’s professional advisor(s), if any, have had the full opportunity to ask ~~the Company’s management~~ such questions, receive such ~~answers~~ answers, and obtain such information as Subscriber and ~~its~~ such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein, and that, in purchasing the Securities, Subscriber is not relying upon any projections contained in the Investor PresentationShares. 2.1.9 Subscriber became aware of this offering of the ~~Securities~~ Shares solely ~~(a)~~ by means of direct contact from the Company, Holdings, or a representative of the Company or Holdings, or (b) directly from the Company as a result of a pre-existing, substantial relationship with the Company, and the Securities were offered to Subscriber solely by direct contact between Subscriber and ~~either~~ the ~~Company~~ Issuer or ~~Holdings. Subscriber did not become aware of this offering of the Securities, nor were the Securities offered to Subscriber, by any other means~~its representative. Subscriber acknowledges that the ~~Company represents and warrants that the Securities (i)~~ Shares were not offered to Subscriber by any form of advertising or, to its knowledge, general ~~solicitation or general advertising and (ii~~solicitation, including methods described in Section 502(c) ~~are not being offered in a manner involving a public offering under, or in a distribution in violation of,~~ of Regulation D under the Securities Act~~, or any state securities laws~~. 2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the ~~Securities~~Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the ~~Securities~~Shares, and Subscriber has sought such accounting, ~~legal~~ legal, and tax advice as Subscriber has considered necessary to make an informed investment decision. The Subscriber understands and acknowledges that it the purchase and sale of the Shares hereunder meets (i) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) ~~has exercised independent judgment in evaluating its participation in~~ the ~~purchase of the Securities~~institutional customer exemption under FINRA Rule 2111(b). 2.1.11 Alone, or together with any professional advisor(s), if any, Subscriber represents and acknowledges that Subscriber has ~~such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has~~ adequately analyzed and ~~fully~~ considered the risks of an investment in the ~~Securities and determined that the Securities are a suitable investment for Subscriber~~ Shares and that Subscriber is able ~~at this time and in the foreseeable future~~ to bear the economic risk of a total loss of Subscriber’s investment in the ~~Company~~Issuer. Subscriber ~~further~~ acknowledges specifically that a possibility of total loss ~~of investment~~ exists. 2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the ~~Securities~~ Shares or made any findings or determination as to the fairness of ~~this investment~~an investment in the Shares. 2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any other Executive Order issued by the President of the United States and administered by OFAC (collectively, “OFAC ~~List~~Lists”)~~, or a person or entity prohibited by any OFAC sanctions program~~, (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States; , (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable lawbank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.~~) (the “BSA”~~), as amended by the USA PATRIOT Act of ~~2001 (the “PATRIOT Act”)~~2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that ~~Subscriber, directly or indirectly through a third party administrator,~~ Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, ~~it, directly or indirectly through a third party administrator,~~ it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC sanctions programs, including the OFAC ~~List, and to otherwise ensure compliance with OFAC-administered sanctions programs~~Lists. Subscriber further represents and warrants that, to the extent required, ~~it, directly or indirectly through a third-party administrator,~~ it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the ~~Securities~~ Shares were legally derived. 2.1.14 On If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), a church plan (as defined in Section 3(33) of ERISA), a non-U.S. plan (as described in Section 4(b)(4) of ERISA), or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S., or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account, or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, Subscriber represents and warrants that neither the Issuer nor any of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold, or transfer the Shares. 2.1.15 The Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at the Subscriber’s direction or pursuant to any understanding with the Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act of the Shares until the consummation of the Transactions (or such earlier termination of this Subscription Agreement in accordance with its terms). For the avoidance of doubt, this Section 2.1.15 shall not apply to (a) any sale (including the exercise of any redemption right) of securities of the Issuer (i) held by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (ii) purchased by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates in open market transactions after the execution of this Agreement or (b) ordinary course, non-speculative hedging transactions. Notwithstanding the foregoing, (a) nothing herein shall prohibit other entities under common management with the Subscriber that have no knowledge of this Subscription Agreement or of the Subscriber’s participation in the subscription (including the Subscriber’s controlled affiliates and/or affiliates) from entering into any short sales and (b) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Subscription Agreement. 2.1.16 Subscriber will have, on the date the Purchase Price ~~will~~ would be required to be ~~funded pursuant to Section 3.1~~funded, ~~Subscriber will have~~ sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1. 2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act. 2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company3. 2.1.17 ~~Except~~ The Subscriber hereby acknowledges and agrees that (a) each of ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPM”) and Citigroup Global Capital Markets Inc. (“Citi” and together with JPM, in their respective capacities as ~~expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission~~ placement agents with respect to the ~~beneficial ownership~~ issuance and sale of the ~~securities of~~ Shares pursuant to this Subscription Agreement and the Other Subscription Agreements, the “Placement Agents”) is each acting solely as Placement Agent in connection with the Transactions and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the undersigned, the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any ~~successor provision~~other person or entity in connection with the Transactions, (b) ~~acting for~~ the ~~purpose~~ Placement Agents have not made and will not make any representation or warranty, whether express or implied, of ~~acquiring~~any kind or character and have not provided any advice or recommendation in connection with the Transactions, ~~holding or disposing of equity securities of~~ (c) the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act). 2.1.18 No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as dePlacement Agents will h

Appears in 1 contract

Sources: Subscription Agreement (Hudson Executive Investment Corp.)

Common use of Subscriber’s Representations, Warranties and Agreements Clause in Contracts