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

Subscriber’s Representations, Warranties and Agreements. The undersigned hereby acknowledges, agrees with and represents and warrants to the Company and its affiliates, as follows, in each case as of the date hereof: (a) The undersigned has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities; (ii) The undersigned has the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

Appears in 2 contracts

Sources: Subscription Agreement (EVO Transportation & Energy Services, Inc.), Subscription Agreement (EVO Transportation & Energy Services, Inc.)

Subscriber’s Representations, Warranties and Agreements. The undersigned hereby acknowledges, agrees with and represents and warrants to the Company and its affiliates, as follows~~, in each case as of the date hereof~~: (a) The undersigned has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities; (ii) The undersigned has the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as ~~set forth~~ described in Section ~~4(a)~~ 5 of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained ~~herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement~~herein, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained ~~herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement~~herein. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, ~~2018 and the subsequently filed Quarterly Reports on Form 10-Q.~~2018. (h) The undersigned’s overall commitment to investments that are not readily marketable is not disproportionate to the undersigned’s net worth, and an investment in the Securities will not cause such overall commitment to become excessive. (i) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL ~~REASONABLY~~ SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (ij) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (jk) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (kl) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (lm) The undersigned has taken no action ~~that~~ which would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (mn) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (no) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (op) No oral or ~~(except as set forth herein or in the Purchase Agreement or the documents referred to therein)~~ written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (pq) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the ~~Purchase~~ Merger Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (qr) The foregoing representations, warranties and agreements will survive the completion of the ~~issuance of the Securities hereunder~~offering.

Appears in 2 contracts

Sources: Subscription Agreement (EVO Transportation & Energy Services, Inc.), Subscription Agreement (EVO Transportation & Energy Services, Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Subscribed Shares and to induce the Sponsor to transfer the Transferred Sponsor Shares, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~the Sponsor, as ~~follows~~applicable, ~~in each case~~ and acknowledges and agrees with the Issuer and the Sponsor, as applicable, as of the date ~~hereof~~hereof and as of the Closing Date, as follows: 2.1.1. Subscriber has been duly formed or incorporated and is validly existing 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. 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes 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. 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 or (ii) result in any violation of any law, 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 of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4. Subscriber (i) is (a) ~~The undersigned~~ 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 I, 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 the Subscribed Shares and receiving transfer of the Transferred Sponsor Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares or receiving transfer of the Transferred Sponsor Shares as a fiduciary or agent for one or more investor accounts, 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 ~~enter into this Agreement~~make the- acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized~~each owner of each such account, ~~if applicable,~~ for investment purposes only and ~~this Agreement constitutes~~ not with a ~~valid and legally binding obligation~~ view to any distribution of the ~~undersigned.~~ 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 (biii) ~~The undersigned acknowledges his~~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, ~~her~~ or ~~its understanding~~ 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). 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 ~~sale~~ 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 Subscribed Shares or receiving transfer of the Transferred Sponsor Shares. 2.1.5. Subscriber understands that the 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, that the sale to the Subscriber is ~~intended to be exempt~~ 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 that the 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, 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 or in a transaction not subject to the registration requirements of the Securities Act, and in each case, in accordance with any other applicable securities laws, and that the Subscribed Shares and Transferred Sponsor 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 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 Subscribed Shares and Transferred Sponsor Shares will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the Subscribed Shares and Transferred Sponsor Shares and may be required to bear the financial risk of an investment in the Subscribed Shares and Transferred Sponsor 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 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. Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer and receiving transfer of the Transferred Sponsor Shares from the Sponsor. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by as applicable, the Issuer, the Company, or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of ~~1933~~1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the 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 (the “~~Securities Act~~Code”), ~~by virtue~~ or any other applicable federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ~~Section 4(a)(2)~~ ERISA or the Code (collectively, “Similar Laws”). 2.1.8. In making its decision to purchase the Subscribed Shares and receive transfer of the ~~Securities Act~~ Transferred Sponsor Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the ~~provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~representations, ~~the undersigned represents~~ warranties and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution covenants of the ~~Securities; (ii) The undersigned has~~ Issuer expressly set forth in this Subscription Agreement. Without limiting the ~~financial ability to bear~~ generality of the ~~economic risk of his~~foregoing, ~~her or its investment, has adequate means for providing for their current needs and contingencies~~Subscriber acknowledges that it is not relying upon, and has ~~no need for liquidity~~ 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, had 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 ~~investment~~ Subscribed Shares and Transferred Sponsor 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 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 financial information (whether historical or in the ~~Company; (iii~~form of financial forecasts or projections) ~~The undersigned~~ of the Issuer have been prepared and ~~the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested~~ reviewed solely by the ~~undersigned~~ Issuer and its officers and employees and have not been reviewed by the Placement Agents or ~~Advisors~~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 Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Issuer and ~~have carefully reviewed them~~ the Company, receive such answers, including on the financial information, and ~~understand the~~ obtain such information ~~contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors~~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 Transferred Sponsor 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, 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 Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares, the transfer of the Transferred Sponsor Shares, the Sponsor, and the Issuer. 2.1.9. Subscriber acknowledges that in addition to their capacity as Placement Agents, the Placement Agents are acting as capital market advisors to the Issuer, in each case in connection with the Transactions. Issuer and the Company are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. Subscriber further 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, 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 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 financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares or transfer of the Transferred Sponsor Shares, and (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 respect of the Transactions. 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 Subscribed Shares and transfer of Transferred Sponsor 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 and transfer of Transferred Sponsor Shares, nor were the Subscribed Shares or Transferred Sponsor Shares offered to Subscriber, by any general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares or Transferred Sponsor Shares 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. 2.1.12. Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription and ownership of the 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 the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the ~~Securities,~~ Subscribed Shares and ~~each Advisor, if any, has disclosed~~ Transferred Sponsor Shares and have the ability to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic ~~risk~~ risks of ~~his, her or~~ its ~~purchase because, among other reasons,~~ prospective investment and can afford the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws complete loss of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”)investment, and ~~they may not be sold pursuant~~ Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to ~~Rule 144 unless all of the conditions of Rule 144 are met~~make an informed investment decision. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and Subscriber acknowledges that ~~his, her or its purchase~~ Subscriber shall be responsible for any of ~~the Securities is a speculative investment~~ Subscriber’s tax liabilities that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or arise as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce PubCo and MBSC to issue the Acquired Securities to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to ~~the Company~~ PubCo and ~~its affiliates,~~ MBSC and acknowledges and agrees with PubCo and MBSC as follows~~, in each case as of the date hereof~~: (a) ~~The undersigned~~ Subscriber has ~~full~~ been duly formed incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter ~~into~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned~~. (b) The ~~undersigned acknowledges his~~execution, ~~her~~ delivery and performance by Subscriber of this Subscription Agreement are within the powers of Subscriber, have been duly authorized and will not (i) constitute or result in a breach or default under or conflict with (i) any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which Subscriber is a party or by which Subscriber is bound, which would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”) or (ii) violate any provisions of Subscriber’s organizational documents, including, without limitation, its ~~understanding that~~ articles of incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. (c) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the ~~offering~~ Securities Act) or an institutional “accredited investor” (within the meaning of Rule 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 I, (ii) is acquiring the Acquired Securities only for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Securities as a fiduciary or agent for one or more investor accounts, 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 acknowledgments, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Acquired Securities 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). Subscriber is ~~intended~~ 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). (d) If the Subscriber is a resident in Canada, or otherwise subject to ~~be exempt from registration~~ 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 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 acknowledges and agrees that the Acquired Securities (and any Underlying Shares) may not be offered, resold, transferred, pledged or otherwise disposed of ~~1933~~by Subscriber absent an effective registration statement under the Securities Act or until PubCo becomes a reporting issuer under applicable securities legislation in Canada and certain other conditions are satisfied, except (i) to 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 (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act and, in some cases, one of the limited exemptions from the prospectus requirements under applicable securities laws in Canada. Subscriber acknowledges and agrees that the Acquired Securities (and any Underlying Shares) will be subject to 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 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 Canadian and U.S. legal counsel prior to making any offer, resale, pledge or transfer of any of the 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. (f) Subscriber acknowledges and agrees that Subscriber is purchasing the Acquired Securities (including any Underlying Shares) directly from PubCo. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by PubCo, MBSC, or their respective affiliates or any of their respective officers, directors, partners, members, managers or employees, expressly or by implication, other than those representations, warranties, covenants and agreements of the PubCo and MBSC included in this Subscription Agreement. (g) If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “~~Securities Act~~Code”) or an employee benefit plan that is a governmental plan (as defined in Section 3(32) of ERISA), ~~by virtue of~~ a church plan (as defined in Section ~~4(a)(2~~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 ~~Securities Act and 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 ~~Regulation D promulgated thereunder~~ 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 “~~Regulation D~~Plan”~~). In furtherance thereof~~) subject to the fiduciary or prohibited transaction provisions of ERISA or Section 4975 of the Code, ~~the undersigned~~ 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 or regulation. (h) In making its decision to subscribe for and purchase the Acquired Securities, Subscriber 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 Company, any of their respective affiliates or any of their respective control persons, officers, directors, partners, members, managers or employees concerning PubCo, MBSC, the Company, their respective affiliates, the Transactions or the Acquired Securities. Subscriber acknowledges and agrees that Subscriber has had access to, and 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 ~~Company~~ Acquired Securities, including with respect to PubCo, MBSC, the Company, and the Transactions. 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 Acquired Securities. 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 provided to Subscriber (other than, for the avoidance of doubt, the information expressly set forth in the representations and warranties made by PubCo and MBSC herein) is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information, shall in no way affect Subscriber’s obligations under this Subscription Agreement (including, without limitation, to purchase the Acquired Securities); provided however, 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 ~~as follows:~~and the Company or any of its affiliates, including with respect to the Greenfire Warrants or any commercial relationship between Subscriber or any of its affiliates and the Company or any of its affiliates. (i) ~~The undersigned is acquiring~~ Subscriber became aware of this offering of the Acquired Securities solely ~~for the undersigned’s own beneficial account, for investment purposes~~by means of direct contact from PubCo or MBSC, and the Acquired Securities were offered to Subscriber solely by direct contact between Subscriber and PubCo or MBSC. Subscriber did not ~~with view to, or resale in connection with, any distribution~~ become aware of this offering of the Acquired Securities; , nor were the Acquired Securities offered to Subscriber, by any other means. Subscriber acknowledges that 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) ~~The undersigned has~~ to PubCo’s knowledge are not being offered in a manner involving a public offering under, or in a distribution in violation of, the ~~financial ability to bear the economic risk of his~~Securities Act, ~~her~~ or ~~its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect~~ any state securities laws. (j) Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~investment in~~ purchase and ownership of the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) Acquired Securities. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the prospective~~ 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. If 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 (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 ~~than an individual,~~ representation or guarantee regarding the ~~undersigned also represents it has not been organized solely for~~ tax consequences of the ~~purpose of acquiring~~ transactions contemplated by the ~~Securities~~Subscription Agreement. (ck) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice ofAlone, or together with any professional advisor(s), Subscriber has ~~consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating~~ adequately analyzed and fully considered the ~~merits and~~ risks of an investment in the ~~Securities,~~ Acquired Securities and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees determined that the ~~undersigned must~~ 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 ~~his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws~~ a total loss of ~~any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed~~ Subscriber’s investment in PubCo. Subscriber acknowledges specifically that a possibility of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities lawstotal loss exists. (fl) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and Subscriber acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Actno federal, ~~as well as any applicable “blue sky”~~ provincial, territorial or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the~~ Acquired Securities ~~and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ or made any findings or determination as to the ~~full satisfaction~~ fairness of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this ~~Agreement or the transactions contemplated hereby~~investment. (m) ~~The undersigned is not relying~~ Neither the due diligence investigation conducted by Subscriber in connection with making its decision to acquire the Acquired Securities nor any representations and warranties made by Subscriber herein shall modify, amend or affect Subscriber’s right to rely on the ~~Company with respect to the legal~~truth, ~~tax, economic~~ accuracy and ~~related considerations~~ completeness of ~~an investment in the Securities,~~ PubCo’s representations and ~~the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors~~warranties contained herein. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnishedNeither Subscriber nor, to the ~~undersigned~~ knowledge of Subscriber, any of its officers, directors, (or ~~his~~managers of U.S. limited liability companies, ~~her~~ or its ~~Advisors~~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 (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by 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. Subscriber agrees to provide law enforcement agencies, if ~~any~~requested thereby, ~~in connection with~~ 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 ~~offering of~~ Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

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. ~~The undersigned~~ To induce the Company to issue the Note to Subscriber at the Closing, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the Company and ~~its affiliates,~~ acknowledges and agrees with the Company 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, and perform its 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. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, 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) general principles of equity, whether considered at law or equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 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 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, 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, individually or in the aggregate, a material adverse effect on the ability of, or prevent, impair, delay or impede the legal authority of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule, regulation or other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 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) 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~~ case, satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the ~~date hereof:~~ Note and the Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (aC) ~~The undersigned~~ 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 its own account and not for the account of others, or if Subscriber is subscribing for the Note and 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 “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgments, ~~the execution and delivery of which has been duly authorized~~representations, ~~if applicable~~warranties, and ~~this Agreement constitutes a valid~~ agreements herein on behalf of each owner of each such account, and ~~legally binding obligation of~~ (vi) not acquiring the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act Note and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not Shares with a view to, or ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities; (ii) The undersigned has the financial ability to bear the economic risk of his, her~~ Securities Act or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks other securities laws of the ~~prospective investment~~ United States or any other jurisdiction (and shall provide the requested information on Schedule I attached hereto, where such information provided shall be accurate and complete in ~~the Securities~~all material respects). ~~If other than~~ Subscriber is not an ~~individual, the undersigned also represents it has not been organized solely~~ entity formed for the specific purpose of acquiring the ~~Securities~~Note and the Shares. ~~(c) The information~~ 2.1.7 Subscriber is a sophisticated investor, experienced in ~~the Investor Questionnaire (attached as Appendix A) completed~~ investing in securities transactions and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating ~~the merits~~ investment risks independently, both in general and ~~risks of an~~ with regard to all transactions and investment strategies involving a security or securities, and has exercised independent judgment in evaluating its participation in the ~~Securities~~purchase of the Note and the Shares. 2.1.8 Subscriber understands that the Note and the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, or any “offer of securities to the public” within the meaning of the EU Prospectus Regulation or the UK Prospectus Regulation, and ~~each Advisor, if any, has disclosed to~~ that the ~~undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor~~ Note and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities Shares have not been registered under the Securities Act or ~~under the~~ any other securities laws of the United States or any ~~state and~~other jurisdiction, ~~therefore~~and as a result, ~~can~~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 that the Note and the Shares may not be resold, transferred, pledged, ~~assigned~~ or otherwise disposed of ~~unless they are subsequently registered~~ 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 any certificates or book entries representing the Shares (if any) shall contain a legend to such effect. Subscriber acknowledges that the Note and the Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities ~~Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met~~Act. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned Subscriber understands and agrees that the 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 Note and the Shares and may be required to bear the financial risk of an investment in the Note and 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 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 ~~may bear substantially~~ Act. 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the ~~following legend until~~ Note and the Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, 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 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 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. 2.1.10 Subscriber represents and warrants that it (i) ~~such Securities shall have been registered~~ 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 ~~Securities~~ Note or the Shares. 2.1.11 Subscriber represents and warrants that either (i) it is not a Benefit Plan Investor, as contemplated by the Employee Retirement Income Security Act ~~and effectively disposed~~ of ~~in accordance with a registration statement that has been declared effective~~ 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Note and the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the ~~opinion~~ Internal Revenue Code of ~~counsel for the Company such Securities may be sold without registration under the Securities Act~~1986, as ~~well as any applicable~~ amended (the “~~blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT~~Code”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIREDor any applicable Similar Law (as defined below). 2.1.12 In making its decision to subscribe for and purchase the Note and the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and 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, 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 and understand such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the 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 Note and the Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had an opportunity to review the documents made available to Subscriber by the Company, (~~i) Neither~~ the ~~SEC nor~~ “Disclosure Package”), provided by the Company and any ~~state securities commission has approved~~ such documents available on the Securities ~~or passed upon or endorsed~~ and Exchange Commission’s (the ~~merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to~~ “Commission”) ▇▇▇▇▇ system. Subscriber represents and agrees that Subscriber and Subscriber~~. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors~~’s professional advisor(s), if any, have had ~~a reasonable~~ the full opportunity to ask ~~questions~~ such questions, receive such answers, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary, without reliance on the Placement Agent, to make an investment decision with respect to the 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 ~~receive answers from a person or persons acting on behalf~~ the Shares and the other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber 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 ~~concerning~~ 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 Placement Agent or any of their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “Representatives”) have made any 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 herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the 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. 2.1.14 Subscriber became aware of this offering of the ~~Securities~~ Note and the ~~business~~Shares solely by means of direct contact between Subscriber, ~~financial condition, results of operations and prospects of~~ on the ~~Company~~one hand, and ~~all such questions have been answered to~~ the ~~full satisfaction of the undersigned and his, her~~ Company or its ~~Advisors~~representatives (including the Placement Agent), ~~if any. (k)~~ on the other hand. The ~~undersigned is unaware of, is in no way relying on,~~ Note and the Shares were offered to Subscriber solely by such direct contact. Subscriber did not become aware of ~~the~~ this offering of the ~~Securities through~~ Note and the Shares, nor were the Note or ~~as a result of~~the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Note and the Shares (i) were not offered to it by any form of general solicitation or general ~~advertising including~~advertising, ~~without limitation~~including methods described in Section 502(c) of Regulation D under the Securities Act, ~~any article~~and (ii) are not being offered to it in a manner involving a public offering under, ~~notice~~or, ~~advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet~~to its knowledge, in ~~connection with~~ a distribution in violation of, the ~~offering~~ Securities Act or any other applicable securities laws. 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ~~sale~~ ownership of the ~~Securities~~ Note and the Shares, including those set forth in the Disclosure Package and the Company SEC Documents (as defined below). Subscriber is ~~not subscribing~~ a sophisticated institutional investor, is able to fend for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned itself in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated ~~hereby. (m) The undersigned is not relying on the Company with respect to the legal~~herein, ~~tax, economic and related considerations of an investment in the Securities, and the undersigned~~ has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.knowl

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Subscribed Shares, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~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 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 its obligations under this Subscription Agreement. 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. Assuming that this Subscription Agreement constitutes 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 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) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (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 of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4 Subscriber (i) is (a) ~~The undersigned~~ 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 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 I, (ii) is acquiring the Subscribed Shares only for his, her or 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, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation~~ each owner of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial each such account, for investment ~~purposes,~~ 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 ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities;~~ Securities Act (~~ii) The undersigned has~~ and shall provide the ~~financial ability~~ requested information on Schedule I following the signature page hereto). Nothing contained herein shall be deemed a representation or warranty by Subscriber to ~~bear~~ hold the ~~economic risk~~ Subscribed Shares for any period of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securitiestime. ~~If other than~~ Subscriber is not an ~~individual, the undersigned also represents it has not been organized solely~~ entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~(c) The information~~ 2.1.5 Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) meaning of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act ~~or an exemption therefrom,~~ and ~~fully understands and agrees~~ that the ~~undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities~~ Subscribed Shares have not been registered under the Securities ~~Act or under the securities laws~~ Act. Except in respect of any ~~state and~~stock lending program, ~~therefore, can~~Subscriber understands that the Subscribed Shares may not be offered, resold, ~~pledged~~transferred, ~~assigned~~ pledged or otherwise disposed of ~~unless they are subsequently registered~~ 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 ~~under the~~ in each of cases (i) and (iii), in accordance with any applicable securities laws of ~~such states~~the states and other jurisdictions of the United States, ~~or an exemption from such registration is available. In particular, the undersigned is aware~~ and that the ~~Securities are “restricted securities,” as~~ Subscribed Shares shall be subject to a legend to such ~~term is defined in~~ 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 resale pursuant to Rule 144 promulgated under the Securities Act until at least one (~~“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of~~ 1) year from the ~~conditions of Rule 144 are met~~Closing Date. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned Subscriber understands and agrees that the ~~Securities~~ 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 of the Subscribed Shares and may be required to bear ~~substantially~~ the ~~following legend until~~ 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. 2.1.6 Subscriber understands 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 or on behalf of the Issuer, Jasper, or any of 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 expressly set forth in this Subscription Agreement. 2.1.7 If Subscriber is 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”). 2.1.8 In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied upon (i) independent investigation made by Subscriber, (ii) the SEC Documents (as defined below) and (iii) the representations, warranties and covenants of the 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 such ~~Securities~~ information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, Jasper and the Transactions, and Subscriber further acknowledges that such information is subject to change, and that any changes to such information, including any changes based on updated information or changes in the terms of the Transactions, shall in no way affect the Subscriber’s obligation to purchase the Subscribed Shares hereunder, except as otherwise provided herein. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have ~~been registered under~~ had the ~~Securities Act~~ full opportunity to ask such questions, receive such answers and ~~effectively disposed~~ 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. 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 Placement Agents in ~~accordance~~ connection with ~~a registration statement~~ Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer. 2.1.9 Subscriber acknowledges and agrees that (a) it has been ~~declared effective~~ 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 ~~opinion~~ 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 ~~counsel for~~ this offering of the ~~Company such Securities may be sold without registration~~ Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or Jasper 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 general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares 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~~, as well as any applicable “blue sky”~~ . 2.1.11 Subscriber understands and agrees that no federal or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ Subscribed Shares or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the ~~Securities,~~ Subscribed Shares. 2.1.12 Subscriber represents and ~~the undersigned has relied~~ warrants that Subscriber is not (i) a person or entity named on the ~~advice of~~List of Specially Designated Nationals and Blocked 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 ~~has consulted with~~a person or entity prohibited by any OFAC sanctions program, ~~only his~~(ii) owned, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, ~~through related parties~~or controlled by, ~~affiliates~~ or ~~otherwise~~acting on behalf of, ~~purchase~~one or more persons that are named on the OFAC List, ~~sell~~ (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 in 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. 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 is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “~~short” or “short~~ BSA/PATRIOT Act”), Subscriber represents that 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 maintains policies and procedures reasonably designed for the screening of its investors against the ~~box”~~ OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 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 Code or an employee benefit plan that is a governmental plan (as ~~those terms~~ 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 Similar Laws or an entity whose underlying assets are ~~generally understood~~considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that neither the Issuer nor any of its affiliates (the “Transaction Parties”) ~~any equity security~~ 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 ~~Company~~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. 2.1.14 Except as expressly disclosed in a Schedule 13D or Schedule 13G (qor amendments thereto) ~~The foregoing representations, warranties~~ filed by such Subscriber with the United States Securities and ~~agreements will survive~~ Exchange Commission (the ~~completion~~ “Commission”) with respect to the beneficial ownership of the ~~issuance of the Securities hereunder.~~Issuer’s securities, Subscriber is not currently a member of

Appears in 2 contracts

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce Grove to issue the applicable Subscribed Shares and the Warrants, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to ~~the Company~~ Grove and ~~its affiliates~~acknowledges and agrees with ▇▇▇▇▇, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and as of the Closing Date, as follows: ~~(a) The undersigned~~ 1.1.1. Subscriber has ~~full~~ been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter ~~into~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . 1.1.2. This Subscription Agreement has been duly authorized, ~~if applicable,~~ validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ binding agreement of Grove, 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 ~~undersigned~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(b)~~ 1.1.3. The ~~undersigned acknowledges his~~execution, ~~her or its understanding that~~ delivery and performance by Subscriber of this Subscription Agreement and the ~~offering and sale~~ consummation of the ~~Securities~~ 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 or (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”). 1.1.4. Subscriber (i) is ~~intended to be exempt from registration~~ (a) 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, ~~by virtue of Section 4(a)(2)~~ experienced in investing in transactions of the ~~Securities Act~~ type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, in each case, satisfying the ~~provisions of Regulation D promulgated thereunder~~ applicable requirements set forth on Schedule A, (~~“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i~~ii) ~~The undersigned~~ is acquiring the Securities ~~solely~~ for its own account and not for the ~~undersigned’s own beneficial~~ account of others, or if Subscriber is subscribing for the Securities as a fiduciary or agent for one or more investor accounts, 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, warranties and agreements herein on behalf of each owner of each such account, for investment ~~purposes,~~ purposes only and not with a view ~~to, or resale in connection with,~~ to any distribution of the ~~Securities; (ii) The undersigned has~~ Securities in any manner that would violate the ~~financial ability to bear~~ securities laws of the ~~economic risk of his, her~~ United States or ~~its investment, has adequate means for providing for their current needs~~ any other applicable jurisdiction and ~~contingencies, and has no need for liquidity with respect to the investment in the Company;~~ (iii) ~~The undersigned and~~ is not acquiring the ~~undersigned’s attorney~~Securities with a view towards, ~~accountant, purchaser representative and/or tax advisor, if~~ any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience distribution thereof in ~~financial and business matters as to be capable of evaluating the merits and risks~~ violation of the ~~prospective investment~~ Securities 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 right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the ~~Securities~~Securities Act. ~~If other than~~ Subscriber is not an ~~individual, the undersigned also represents it has not been organized solely~~ entity formed for the specific purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as 1.1.5. Subscriber understands that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities ~~without registration under~~ are being offered in a transaction not involving any public offering within the meaning of the Securities Act ~~or an exemption therefrom,~~ and ~~fully understands and agrees~~ that ~~the undersigned must bear the economic risk of his, her or its purchase because, among other reasons,~~ the Securities have not been registered under the Securities ~~Act or under the securities laws~~ Act. Except in respect of any ~~state and~~stock lending program, ~~therefore, can~~Subscriber understands that the Securities may not be resold, ~~pledged~~transferred, ~~assigned~~ pledged or otherwise disposed of ~~unless they are subsequently registered~~ by Subscriber absent an effective registration statement under the Securities ~~Act and under~~ Act, except (i) to the ~~applicable securities laws~~ issuer of such ~~states~~Securities or a subsidiary thereof, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (~~“Rule 144”), and they may not be sold~~ ii) to non-U.S. persons pursuant to ~~Rule 144 unless all~~ offers and sales that occur solely outside the United States within the meaning of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration Regulation S under the Securities Act or (iii) pursuant to another applicable ~~state securities laws. The undersigned understands that any sales or transfers~~ exemption from the registration requirements of the Securities ~~are further restricted by state securities laws.~~ Act (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreementincluding Rule 144), and in ~~subscribing for~~ 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 Securities shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the ~~undersigned is~~ relevant resale as set forth in this Subscription Agreement). Subscriber acknowledges that the Securities will not ~~relying upon any representations other than those contained herein or in~~ be eligible for resale pursuant to Rule 144A promulgated under the ~~Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned~~ Securities Act. Subscriber understands and ~~acknowledges~~ agrees that ~~his, her or its purchase~~ unless the resale of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a covered by an effective registration statement ~~that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration~~ under the Securities Act, the Securities will be subject to the foregoing restrictions and, as ~~well~~ a 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 independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Securities are a suitable investment for 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 Securities from Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by Grove or any ~~applicable “blue sky”~~ 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 exists. 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 securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities ~~and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the Securities. 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 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) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell 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 is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the ~~undersigned has relied on~~ “BSA/PATRIOT Act”), Subscriber represents that it maintains policies and procedures reasonably designed to comply with applicable obligations under the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnishedBSA/PATRIOT Act. Subscriber also represents that, to the ~~undersigned~~ extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 1.1.11. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or ~~his, her or its Advisors, if any,~~ subnational governments of a single foreign state have a substantial interest (as defined in ~~connection with the offering~~ 31 C.F.R. Part 800.244) and that will acquire a substantial interest in Grove as a result of the ~~Securities.~~ purchase and sale of 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 (pas defined in 31 C.F.R. Part 800.208) ~~The undersigned agrees, acknowledges~~ over Grove from and ~~understands that during~~ after the ~~period commencing on the date hereof through the Company’s public announcement~~ Closing as a result of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties purchase and ~~agreements will survive the completion of the issuance~~ sale of the Securities hereunder. 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 Grove. 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 any Short Sales with respect to securities of Grove. For the purposes hereof, “Short Sales” shall mean all “short sales” 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 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 on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement or (ii) ordinary course, non-speculative hedging transactions.

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Company to issue the Shares to Subscriber at the Closing, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the Company and ~~its affiliates,~~ acknowledges and agrees with the Company 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, and perform its 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. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Company, 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) general principles of equity, whether considered at law or equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 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 (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, 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, individually or in the aggregate, a material adverse effect on the ability of, or prevent, impair, delay or impede the legal authority of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule, regulation or other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 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) 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~~ case, satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the ~~date hereof:~~ Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (aC) ~~The undersigned~~ 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 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 “accredited investor” and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgments, representations, warranties, and agreements herein on behalf of each owner of each such account, and (vi) 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 any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I attached hereto, where such information provided shall be accurate and complete in all material respects). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 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 that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities 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 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 execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the ~~Securities~~ Shares to Subscriber is ~~intended~~ being made pursuant to ~~be exempt~~ an exemption from registration 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 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 any certificates or book entries representing the Shares (if any) 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 and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that 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 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. 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. 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, 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 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 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. 2.1.10 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 Investor, as contemplated by the Employee Retirement Income Security Act of ~~1933~~1974, as amended (“ERISA”), or (ii) its 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 Internal Revenue Code of 1986, as amended (the “~~Securities Act~~Code”), or any applicable Similar Law (as defined below). 2.1.12 In making its decision to subscribe for and purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~virtue of~~ Subscriber and the Company’s representations, warranties and agreements in Section ~~4(a)(2)~~ 2.2 hereof. Without limiting the generality of the ~~Securities Act~~ foregoing, Subscriber has not relied on and disclaims reliance on any statements or other information provided by any Non-Party Affiliate concerning the ~~provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~Company or the Shares, the ~~undersigned represents~~ offer and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution sale of the ~~Securities; (ii) The undersigned~~ Shares or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has ~~the financial ability~~ received access to ~~bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies,~~ and has ~~no need for liquidity~~ had an adequate opportunity to review and understand 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 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 Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had an opportunity to review the documents made available to Subscriber by the Company; , (~~iii~~the “Disclosure Package”), provided by the Company and any such documents available on the Securities and Exchange Commission’s (the “Commission”) ~~The undersigned~~ ▇▇▇▇▇ system. 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, without reliance on the Placement Agent, to make an investment decision with respect to the Shares and conducted and completed their own independent diligence concerning the Company, the Shares, the offer and sale of the Shares and the ~~undersigned’s attorney~~other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber has deemed appropriate, ~~accountant~~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, ~~purchaser representative and/or tax advisor~~warranties and agreements of the Company expressly set forth in this Subscription Agreement, if 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 Placement Agent or any of their respective affiliates, or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “~~Advisors~~Representatives”) have made any 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 herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Company’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) it has not relied on any statements or other information provided by the 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. 2.1.14 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber, on the one hand, and the Company or its representatives (including the Placement Agent), ~~have received all documents requested~~ on the other hand. The Shares were offered to Subscriber solely by such direct contact. Subscriber did not become aware of this offering of the ~~undersigned~~ Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to it by any form of general solicitation or ~~Advisors~~general advertising, ~~if any~~including methods described in Section 502(c) of Regulation D under the Securities Act, and ~~have carefully reviewed them and understand~~ (ii) are not being offered to it in a manner involving a public offering under, or, to its knowledge, in a distribution in violation of, the ~~information contained therein, prior~~ Securities Act or any other applicable securities laws. 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~execution~~ purchase and ownership of ~~this Agreement; and~~ the Shares, including those set forth in the Disclosure Package and the Company SEC Documents (~~iv) The undersigned (together with his~~as defined below). Subscriber is a sophisticated institutional investor, ~~her or its Advisors~~is able to fend for itself in the transactions contemplated herein, ~~if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is availableShares. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and Subscriber acknowledges that ~~his, her or its purchase~~ Subscriber shall be responsible for any of ~~the Securities is a speculative investment~~ Subscriber’s tax liabilities that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or arise as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by ~~the Purchase~~ this Subscription Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security and that none of the Company~~. (q) The foregoing representations~~, ~~warranties and agreements will survive~~ the ~~completion~~ Placement Agent or 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 ~~issuance of the Securities hereunder.~~transactions contemplated by this Subscription Agreement. Subscriber

Appears in 1 contract

Sources: Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce Grove to issue the applicable Subscribed Shares, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to ~~the Company~~ Grove and ~~its affiliates~~acknowledges and agrees with ▇▇▇▇▇, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and as of the Closing Date (as defined below), as follows: ~~(a) The undersigned~~ 2.1.1. Subscriber has ~~full~~ been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter ~~into~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . 2.1.2. This Subscription Agreement has been duly authorized, ~~if applicable,~~ validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ binding agreement of Grove, 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 ~~undersigned~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(b)~~ 2.1.3. The ~~undersigned acknowledges his~~execution, ~~her or its understanding that~~ delivery and performance by Subscriber of this Subscription Agreement and the ~~offering and sale~~ consummation of the ~~Securities~~ 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 or (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”). 2.1.4. Subscriber (i) is ~~intended to be exempt from registration~~ (a) 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, ~~by virtue of Section 4(a)(2)~~ experienced in investing in transactions of the ~~Securities Act~~ type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, in each case, satisfying the ~~provisions of Regulation D promulgated thereunder~~ applicable requirements set forth on Schedule A, (~~“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i~~ii) ~~The undersigned~~ is acquiring the Securities ~~solely~~ for its own account and not for the ~~undersigned’s own beneficial~~ account of others, or if Subscriber is subscribing for the Securities as a fiduciary or agent for one or more investor accounts, 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, warranties and agreements herein on behalf of each owner of each such account, for investment ~~purposes,~~ purposes only and not with a view ~~to, or resale in connection with,~~ to any distribution of the ~~Securities; (ii) The undersigned has~~ Securities in any manner that would violate the ~~financial ability to bear~~ securities laws of the ~~economic risk of his, her~~ United States or ~~its investment, has adequate means for providing for their current needs~~ any other applicable jurisdiction and ~~contingencies, and has no need for liquidity with respect to the investment in the Company;~~ (iii) ~~The undersigned and~~ is not acquiring the ~~undersigned’s attorney~~Securities with a view towards, ~~accountant, purchaser representative and/or tax advisor, if~~ any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience distribution thereof in ~~financial and business matters as to be capable of evaluating the merits and risks~~ violation of the ~~prospective investment~~ Securities 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 right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the ~~Securities~~Securities Act. ~~If other than~~ Subscriber is not an ~~individual, the undersigned also represents it has not been organized solely~~ entity formed for the specific purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as 2.1.5. Subscriber understands that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities ~~without registration under~~ are being offered in a transaction not involving any public offering within the meaning of the Securities Act ~~or an exemption therefrom,~~ and ~~fully understands and agrees~~ that ~~the undersigned must bear the economic risk of his, her or its purchase because, among other reasons,~~ the Securities have not been registered under the Securities ~~Act or under the securities laws~~ Act. Except in respect of any ~~state and~~stock lending program, ~~therefore, can~~Subscriber understands that the Securities may not be resold, ~~pledged~~transferred, ~~assigned~~ pledged or otherwise disposed of ~~unless they are subsequently registered~~ by Subscriber absent an effective registration statement under the Securities ~~Act and under~~ Act, except (i) to the ~~applicable securities laws~~ issuer of such ~~states~~Securities or a subsidiary thereof, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (~~“Rule 144”), and they may not be sold~~ ii) to non-U.S. persons pursuant to ~~Rule 144 unless all~~ offers and sales that occur solely outside the United States within the meaning of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration Regulation S under the Securities Act or (iii) pursuant to another applicable ~~state securities laws. The undersigned understands that any sales or transfers~~ exemption from the registration requirements of the Securities ~~are further restricted by state securities laws.~~ Act (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreementincluding Rule 144), and in ~~subscribing for~~ 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 Securities shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the ~~undersigned is~~ relevant resale as set forth in this Subscription Agreement). Subscriber acknowledges that the Securities will not ~~relying upon any representations other than those contained herein or in~~ be eligible for resale pursuant to Rule 144A promulgated under the ~~Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned~~ Securities Act. Subscriber understands and ~~acknowledges~~ agrees that ~~his, her or its purchase~~ unless the resale of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a covered by an effective registration statement ~~that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration~~ under the Securities Act, the Securities will be subject to the foregoing restrictions and, as ~~well~~ a 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 independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Securities. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Securities are a suitable investment for 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 Securities from Grove. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by Grove or any ~~applicable “blue sky”~~ 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 exists. 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 securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities ~~and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the Securities. 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 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) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell 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 is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the ~~undersigned has relied on~~ “BSA/PATRIOT Act”), Subscriber represents that it maintains policies and procedures reasonably designed to comply with applicable obligations under the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnishedBSA/PATRIOT Act. Subscriber also represents that, to the ~~undersigned~~ extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived. 2.1.11. Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or ~~his, her or its Advisors, if any,~~ subnational governments of a single foreign state have a substantial interest (as defined in ~~connection with the offering~~ 31 C.F.R. Part 800.244) and that will acquire a substantial interest in Grove as a result of the ~~Securities.~~ purchase and sale of 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 (pas defined in 31 C.F.R. Part 800.208) ~~The undersigned agrees, acknowledges~~ over Grove from and ~~understands that during~~ after the ~~period commencing on the date hereof through the Company’s public announcement~~ Closing as a result of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties purchase and ~~agreements will survive the completion of the issuance~~ sale of the Securities hereunder. 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 Grove. 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 any Short Sales with respect to securities of Grove. For the purposes hereof, “Short Sales” shall mean all “short sales” 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 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 on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement or (ii) ordinary course, non-speculative hedging transactions.

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants (for itself and for each account for which Subscriber is acquiring the Shares) to the ~~Company~~ Issuer and ~~its affiliates~~the Placement Agents (as defined below) and acknowledges, understands and agrees with the Issuer and the Placement Agents as follows~~, in each case as of the date hereof~~: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing in good standing (aif such concept is applicable) ~~The undersigned has full~~ under the laws of its jurisdiction of incorporation or formation, with power and authority to enter ~~into~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . 2.1.2 This Subscription Agreement has been duly authorized, ~~if applicable~~executed and delivered by Subscriber. Assuming the due authorization, execution and delivery of the same by 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 The execution, delivery and performance by Subscriber of this Subscription Agreement ~~constitutes a valid~~ and ~~legally binding obligation~~ the consummation of the ~~undersigned~~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 prevent or delay Subscriber’s timely performance of its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) 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 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 Subscriber (bi) ~~The undersigned acknowledges his~~is (a) an institutional “accredited investor” (within the meaning of Rule 501(a)(1), ~~her~~ (2), (3) or ~~its understanding that the offering and sale of the Securities is intended to be exempt from registration~~ (7) under the Securities Act of ~~1933~~1933 (as amended, ~~as amended (~~the “Securities Act”)), ~~by virtue~~ in each case, satisfying the applicable requirements set forth on Schedule I hereto and (b) an “institutional account” (as defined in FINRA Rule 4512(c)), (ii) is acquiring the Shares only for its own account and not for the account of ~~Section 4(a)(2~~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 an accredited investor (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) 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, (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 (iv) has provided the requested information on Schedule I hereto. Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 2.1.5 The Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and the ~~provisions~~ Shares have not been registered under the Securities Act or the laws of ~~Regulation D promulgated thereunder (“Regulation D”)~~any jurisdiction. ~~In furtherance thereof~~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 ~~undersigned represents and warrants to the Company and its affiliates as follows:~~ Securities Act, except (i) ~~The undersigned is acquiring~~ to the ~~Securities solely for the undersigned’s own beneficial account~~Issuer or a subsidiary thereof, ~~for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities;~~ (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 the cases of the foregoing clauses (i) through (iii) of this Section 2.1.5, 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 or book entries 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. The ~~undersigned has~~ Shares will be subject to the ~~financial ability~~ foregoing transfer restrictions and, as a result, Subscriber may not be able to readily resell the Shares and may be required to bear the ~~economic~~ financial risk of ~~his~~an investment in the Shares for an indefinite period of time, ~~her~~ provided however, that the Subscriber shall be permitted to transfer, assign or ~~its investment~~sell all or a portion of the Shares to an affiliate (as such term is defined in Rule 144 promulgated under the Securities Act) of the Subscriber. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge, transfer or other disposition of any of the Shares. Subscriber acknowledges and agrees that the certificate or book-entry position representing the Shares will bear or reflect, as applicable, a legend substantially similar to the following: 2.1.6 Subscriber is purchasing the Shares directly from the Issuer. Subscriber acknowledges that no disclosure or offering document has ~~adequate means for providing for~~ been prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Deutsche Bank Securities Inc. or any of their ~~current needs~~ respective Affiliates or any of the foregoing’s respective control persons, directors, officers or other employees, partners, agents or other representatives (collectively, the “Placement Agents”) in connection with the offer and ~~contingencies~~sale of the Shares. There have been no representations, warranties, covenants or agreements made to Subscriber by or on behalf of the Issuer, the Company, the Placement Agents or any of their respective Affiliates or any control persons, directors, officers or other employees, partners, agents or other representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Subscription Agreement, and ~~has~~ Subscriber is not relying on any representations, warranties or covenants other than those of the Issuer expressly set forth in this Subscription Agreement in making its investment or decision to invest in the Issuer. 2.1.7 Certain information provided or made available to 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. Subscriber acknowledges that such information and projections were prepared without the participation of the Placement Agents and that the Placement Agents do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. 2.1.8 None of the Placement Agents shall be liable to Subscriber (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 this Subscription Agreement and the transactions contemplated thereby. 2.1.9 The Placement Agents have made no ~~need for liquidity~~ independent investigation with respect to the Issuer, the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer or the Company. 2.1.10 Subscriber (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, including its participation in the ~~Company;~~purchase of the Shares and (ii) has exercised independent judgment in evaluating its participation in the purchase of the Shares. Accordingly, Subscriber understands that the offering meets (a) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (b) the institutional customer exemption under FINRA Rule 2111(b). ~~(iii) The undersigned and~~ 2.1.11 Subscriber is aware that the ~~undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by~~ sale to it is being made in reliance on a private placement exemption from registration under the ~~undersigned or Advisors, if any, and have carefully reviewed them and understand~~ Securities Act. 2.1.12 Subscriber is able to fend for itself in the ~~information contained therein, prior to the execution of this Agreement~~transactions contemplated herein; ~~and (iv) The undersigned (together with his, her or its Advisors, if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the~~ its prospective investment in the ~~Securities~~Shares; and has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment. 2.1.13 Subscriber’s acquisition and holding of the Shares will not constitute 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, or any applicable similar law. 2.1.14 In making its decision to purchase the Shares, Subscriber has relied solely upon independent investigation made by Subscriber. If Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided or made available 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 ~~individual~~adequate opportunity to review the Merger Agreement, the ~~undersigned also represents~~ documents provided to Subscriber in the electronic dataroom and 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, the Company and the Transactions. Subscriber has independently made its own assessment and decision to purchase the Shares and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. Subscriber acknowledges that it has ~~not been organized solely for~~ carefully reviewed the ~~purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed~~ documents provided and/or made available to Subscriber by the ~~undersigned (the “Investor Questionnaire”) is true and accurate in all respects,~~ Issuer and the ~~undersigned~~ Company. Subscriber acknowledges that no statement or printed material which is ~~an “accredited investor,” as that term is defined in Rule 501(a)~~ contrary to the investor presentation provided to Subscriber has been made or given to Subscriber by or on behalf of ~~Regulation D. (d) The undersigned has relied on~~ the ~~advice of, or has consulted with, only his, her or its Advisors~~Issuer. ~~Each Advisor~~Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers from the Issuer, 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 further acknowledges that the information provided and/or made available to Subscriber is preliminary and subject to change, and that any changes to such information, 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 Shares hereunder. 2.1.15 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber and the Issuer, the Company or a representative of the Issuer or the Company, or by means of contact from any of the Placement Agents in their capacity as such, and the Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer, the Company or a representative of the Issuer or the Company, or by contact between Subscriber and one or more Placement Agents in their capacity as such. Subscriber has a pre-existing substantive relationship (as interpreted in guidance from the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer, the Company, any of their respective representatives or 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 Shares (i) were not offered to it 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 in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. 2.1.16 Subscriber 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 Issuer’s filings with the Commission. 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 ~~each Advisor~~Subscriber has sought such accounting, ~~if any~~legal and tax advice as Subscriber has considered necessary to make an informed investment decision and Subscriber has made its own assessment and has satisfied itself concerning relevant tax and other economic considerations relative to its purchase of the Shares, ~~has disclosed~~ the Transactions, the Merger Agreement, and the transactions contemplated hereby or thereby. Subscriber will not look to the ~~undersigned in writing (a copy of which is annexed to this Agreement) the specific details~~ Placement Agents for all or part of any ~~and all past~~such loss or losses Subscriber may suffer, ~~present or future relationships, actual or contemplated, between~~ is able to sustain a complete loss on its investment in the ~~Advisor and the Company or any affiliate thereof~~Shares. 2.1.17 Alone, or together with any professional advisor(s), Subscriber has adequately analyzed and fully considered the risks of an investment in the Shares and determined that its purchase of such Shares (ei) ~~The undersigned represents~~is fully consistent with its financial needs, ~~warrants~~ objectives and ~~agrees that he~~condition and (ii) is a fit, ~~she~~ proper and suitable investment for Subscriber notwithstanding the substantial risks inherent in investing in or ~~it will not sell or otherwise transfer~~ holding the ~~Securities without registration under the Securities Act or an exemption therefrom~~Shares, and ~~fully understands~~ that Subscriber is able at this time and ~~agrees that~~ in the ~~undersigned must~~ foreseeable future to bear the economic risk of ~~his, her or its purchase because, among other reasons,~~ a total loss of Subscriber’s investment in the ~~Securities have not been registered under the Securities Act or under the securities laws~~ Issuer. Subscriber acknowledges specifically that a possibility of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities lawstotal loss exists. ~~(f) No representations~~ 2.1.18 Subscriber has not relied on any statements, representations, warranties or ~~warranties have been made to the undersigned by the Company,~~ other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided ~~to Subscriber. This offering has not been reviewed~~ or made available by ~~any Federal, state~~ or ~~other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting~~ on behalf of the ~~Company~~ Placement Agents concerning the ~~offering of the Securities and the business~~Issuer, ~~financial condition, results of operations and prospects of~~ the Company, ~~and all such questions have been answered to~~ the ~~full satisfaction of~~ Transactions, the ~~undersigned and his~~Merger Agreement, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Subscription Agreement or the transactions contemplated ~~hereby~~hereby or thereby, the Shares or the offer and sale of the Shares. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned 2.1.19 Subscriber acknowledges that ~~any estimates or forward-looking statements or projections included~~ the Placement Agents in their capacity as such: (i) are each acting solely as the ~~Company~~Issuer’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, Placement Agent in connection with the ~~offering of the Securities. (p) The undersigned agrees~~Transactions and are not acting as underwriters or in any other capacity, ~~acknowledges~~ except as otherwise set forth herein, and ~~understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement~~are not and shall not be construed as a fiduciary for Subscriber, the ~~undersigned~~ Company or any other person or entity in connection with the Transactions, (ii) have not made nor make any representation or warranty, express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (iii) will ~~not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box”~~ have no responsibility with respect to (~~as those terms are generally understood~~a) any ~~equity security of the Company. (q) The foregoing~~ representations, warranties ~~and~~ or agreements ~~will survive~~ made by any person or entity under or in connection with the ~~completion~~ Transactions or any of the ~~issuance~~ documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person or entity) of any thereof, or (b) the ~~Securities hereunder.~~business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning, the Issuer, the Company or the Transactions, (iv) have not acted as Subscriber’s financial advisor

Appears in 1 contract

Sources: Subscription Agreement (SVF Investment Corp. 3)

Appears in 1 contract

Sources: Subscription Agreement (Vertical Aerospace Ltd.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Subscribed Shares, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and as of the Closing Date, as follows: 2.1.1. Subscriber has been duly formed or incorporated and is validly existing 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. 2.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes 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. 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 or (ii) result in any violation of any law, 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 of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4. Subscriber (i) is (a) ~~The undersigned~~ 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, in each case, satisfying the applicable requirements set forth on Schedule I, 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 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 QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the- acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized~~each owner of each such account, ~~if applicable,~~ for investment purposes only and ~~this Agreement constitutes~~ not with a ~~valid and legally binding obligation~~ view to any distribution of the ~~undersigned.~~ Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (biii) ~~The undersigned acknowledges his~~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, ~~her~~ or ~~its understanding~~ 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). 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 ~~sale~~ 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 Subscribed Shares. 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, that the sale to the Subscriber is ~~intended to be exempt~~ 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 or any other applicable securities laws, and that the Subscribed Shares are being offered for resale in transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the 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, 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 or in a transaction not subject to the registration requirements of the Securities Act, and in each case, in accordance with any other applicable securities laws, 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 resale 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 resell 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. 2.1.6. Subscriber understands 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, FiscalNote, or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement. 2.1.7. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of ~~1933~~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 “~~Securities Act~~Code”), or any other applicable 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”). 2.1.8. In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~virtue of Section 4(a)(2)~~ Subscriber and the representations, warranties and covenants of the ~~Securities Act and~~ Issuer expressly set forth in this Subscription Agreement. Without limiting the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution generality of the ~~Securities; (ii) The undersigned has the financial ability to bear the economic risk of his~~foregoing, ~~her or its investment, has adequate means for providing for their current needs and contingencies~~Subscriber acknowledges that it is not relying upon, and has ~~no need for liquidity~~ not relied on any representations, warranties, statements or other information provided by anyone (including without limitation, J.▇. ▇▇▇▇▇▇ Securities LLC and Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, 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, had 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 ~~investment~~ Subscribed Shares, including with respect to the Issuer, FiscalNote and the Transactions, and that such information is preliminary and subject to change and that none of the 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 financial information (whether historical or in the ~~Company; (iii~~form of financial forecasts or projections) ~~The undersigned~~ of the Issuer have been prepared and ~~the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested~~ reviewed solely by the ~~undersigned~~ Issuer and its officers and employees and have not been reviewed by the Placement Agents or ~~Advisors~~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 Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Issuer and ~~have carefully reviewed them~~ FiscalNote, receive such answers, including on the financial information, and ~~understand the~~ obtain such information ~~contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors~~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. 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 FiscalNote 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. 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 the Issuer. 2.1.9. Subscriber acknowledges that in addition to their capacity as Placement Agents, J.▇. ▇▇▇▇▇▇ Securities LLC is acting as sell side advisor to FiscalNote, and Citigroup Global Markets Inc. is acting as capital market advisor to the Issuer, in each case in connection with the Transactions. Issuer and FiscalNote are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. Subscriber further 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, the Issuer and FiscalNote 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, the Issuer, FiscalNote or the Transactions, (d) none of the Placement Agents or any of their affiliates have acted as the Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares, and (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 respect of the Transactions. 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, FiscalNote or its subsidiaries or any of their respective businesses, or the Subscribed Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer. 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 general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares 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. 2.1.12. Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription and ownership of the 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 the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the ~~Securities~~Subscribed Shares and have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and ~~each Advisor~~Subscriber has sought such accounting, ~~if any~~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 Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, ~~has disclosed to~~ and that neither FiscalNote, the ~~undersigned in writing (a copy~~ Issuer, nor any of ~~which is annexed to this Agreement) the specific details of~~ their respective agents or affiliates, have provided any ~~and all past, present or future relationships, actual or contemplated, between the Advisor and the Company~~ tax advice or any ~~affiliate thereof~~other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully 2.1.13. Subscriber understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” federal or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ Subscribed Shares or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the ~~Securities~~Subscribed Shares. 2.1.14. Subscriber represents and warrants that none of Subscriber or any of its officers, ~~and the undersigned has relied~~ 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 or entity named on the ~~advice~~ List of Specially Designated Nationals and Blocked 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, “Sanctions Lists”, or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or ~~has consulted with~~more persons on a Sanctions List; (iii) organized, ~~only his~~incorporated, ~~her~~ established, located, resident or ~~its own Advisors. (n) The undersigned acknowledges that any estimates~~ born in, or ~~forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith~~a citizen, ~~but that the attainment of any such projections~~national, ~~estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement~~ or the ~~documents referred to therein) written representations have been made~~government, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.inc

Appears in 1 contract

Sources: Subscription Agreement (Duddell Street Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce each Issuer to issue the applicable Subscribed Shares, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to ~~the Company~~ each Issuer and ~~its affiliates~~acknowledges and agrees with Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and as of the Closing Date, as follows: 4.1.1. Subscriber has been duly formed or incorporated and is validly existing 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. 4.1.2. This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of each 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. 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) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (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”). 4.1.4. Subscriber (i) is (a) ~~The undersigned~~ 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 B, (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, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation~~ each owner of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial each such account, for investment ~~purposes,~~ 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 ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities;~~ Securities Act (~~ii) The undersigned has~~ and shall provide the ~~financial ability to bear~~ requested information on Schedule B following the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”signature page hereto), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. ~~If other than~~ Subscriber is not an ~~individual, the undersigned also represents it has not been organized solely~~ entity formed for the specific purpose of acquiring the ~~Securities~~Subscribed Shares. ~~(c) The information~~ 4.1.5. Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) meaning of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act ~~or an exemption therefrom,~~ and ~~fully understands and agrees~~ that the ~~undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities~~ Subscribed Shares have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.the

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Shares and the Warrants to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates,~~ HPX and acknowledges and agrees with the Issuer and HPX as follows~~, in each case as of the date hereof~~: (a) ~~The undersigned~~ Subscriber has ~~full~~ been duly formed or incorporated and is validly existing 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~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . (b) This Subscription Agreement has been duly authorized, ~~if applicable~~approved by all necessary action, validly executed and delivered by Subscriber. The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is fully consistent with all investment policies, guidelines and other restrictions applicable to the Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ binding agreement of the Issuer and HPX, this Subscription Agreement is the valid and binding obligation of 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 ~~undersigned~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (bc) The ~~undersigned acknowledges his~~execution, ~~her~~ delivery and performance of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated 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 ~~understanding~~ 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, that would reasonably be expected to adversely affect the Subscriber’s ability to acquire and hold Shares and to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) 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 or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (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), (9) or (12) of Regulation D under the Securities Act), in either case satisfying the applicable requirements set forth on Schedule I, and an “institutional account” as defined in FINRA Rule 4512(c), and is not an entity formed for the specific purpose of acquiring the Shares, (B) 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, (C) has exercised independent judgment in evaluating its participation in the purchase of the Shares, (D) is aware that the ~~offering and~~ sale ~~of the Securities~~ to it is ~~intended to be exempt~~ 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 ~~1933~~others, or if Subscriber is subscribing for the Shares as ~~amended (the~~ a fiduciary or agent for one or more investor accounts, each owner of such account is a “~~Securities Act”)~~qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, ~~by virtue of Section 4(a)(2) of the Securities Act~~ and the ~~provisions~~ full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial each owner of each such account, for investment ~~purposes,~~ 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 ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities~~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) ~~The undersigned has~~ Subscriber is located outside the ~~financial ability~~ 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 ~~bear~~ it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the ~~economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies~~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 ~~no need~~ not purchased such Shares for ~~liquidity with respect to~~ the ~~investment~~ account or benefit of any person located in the ~~Company~~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) ~~The undersigned~~ 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 ~~undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any~~ 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 (~~collectively,~~ the “~~Advisors~~EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, ~~have received all documents requested~~ Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the ~~undersigned or Advisors, if any, and have carefully reviewed them and understand~~ European Union (Withdrawal) Act 2018 (the ~~information contained therein, prior to the execution of this Agreement~~“UK Prospectus Regulation”); and (ivv) ~~The undersigned~~ Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (~~together with his~~investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, ~~her~~ “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or ~~its Advisors~~resident in a jurisdiction other than the Federative Republic of Brazil, ~~if any) has such knowledge~~ and ~~experience~~ able to hold securities and engage in financial ~~and business matters as to be capable~~ settlement of ~~evaluating the merits and risks of the prospective investment~~ securities transactions with funds held in the ~~Securities~~United States. ~~If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c)~~ The information ~~in the Investor Questionnaire (attached as Appendix A) completed and executed~~ provided by ~~the undersigned (the “Investor Questionnaire”)~~ Subscriber on Schedule I is true and ~~accurate~~ correct in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) ~~The undersigned represents~~Together with its investment adviser, ~~warrants and agrees~~ if applicable, Subscriber understands that ~~he, she or it will~~ the Shares are being offered in a transaction not ~~sell or otherwise transfer~~ involving any public offering within the ~~Securities without registration under~~ meaning of the Securities Act or ~~an exemption therefrom~~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 ~~fully understands and agrees~~ that the ~~undersigned must bear~~ offer and sale of the ~~economic risk of his, her or its purchase because, among other reasons, the Securities~~ Shares have not been registered under the Securities ~~Act~~ Act, the Brazilian Offering Regulations or ~~under~~ any other applicable securities laws. Subscriber understands that the ~~securities laws of any state and, therefore, can~~Shares may not be offered, resold, ~~pledged~~transferred, ~~assigned~~ pledged or otherwise disposed of ~~unless they are subsequently registered~~ by Subscriber absent an effective registration statement under the Securities ~~Act and under~~ Act, except (i) to the ~~applicable securities laws of such states~~Issuer or a subsidiary thereof, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (~~“Rule 144”), and they may not be sold~~ ii) to non-U.S. persons pursuant to ~~Rule 144 unless all~~ offers and sales that occur solely outside the United States within the meaning of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration Regulation S under the Securities Act or (iii) pursuant to another applicable ~~state securities laws. The undersigned understands that any sales or transfers~~ 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 ~~further restricted by state securities laws~~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 understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily offer, resell, transfer or pledge or otherwise dispose of 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, transfer or disposition of any of the Shares. (f) ~~No representations or warranties~~ Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, statements or agreements made to Subscriber by or on behalf of the ~~undersigned~~ 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 ~~the Company~~implication (including by omission), other than ~~any representations~~ those representations, warranties, covenants, statements and agreements of the ~~Company contained herein or~~ Issuer and HPX expressly set forth in ~~the Purchase Agreement or in any document referred to in the Purchase~~ this Subscription Agreement, and ~~in subscribing for the Securities the undersigned~~ Subscriber is not relying ~~upon~~ on any ~~representations~~ representations, warranties, covenants, statements or agreements other than those ~~contained herein or~~ expressly set forth in ~~the Purchase Agreement or in any document referred to in the Purchase~~ this Subscription Agreement. (g) ~~The undersigned understands and acknowledges~~ Subject to the assumption that ~~his, her or its purchase~~ the assets of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with Issuer do not constitute “plan assets” under the U.S. ~~Securities and Exchange Commission~~ Employee Retirement Income Security Act of 1974, as amended (“~~SEC~~ERISA”), ~~including~~ if Subscriber is or is acting on behalf of 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 U.S. Internal Revenue Code of 1986, as amended (the “Code”), or an employee benefit plan that is a governmental plan (as defined in ~~particular~~ 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 ~~matters~~ 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 ~~caption~~ Code (“~~Risk Factors~~Similar Law”), or an entity whose underlying assets are considered to include “plan assets” ~~contained~~ 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 ~~Company’s Annual Report on Form 10-K filed with~~ Code, or under Similar Law or otherwise violate the ~~SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q.~~provisions thereunder. (h) ~~The undersigned understands~~ 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 ~~agrees that~~ each of the ~~Securities may bear substantially~~ Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the ~~following legend until~~ 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 (iincluding 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) ~~such Securities shall have been registered under~~ other than the ~~Securities Act~~ representations and ~~effectively disposed~~ warranties of the Issuer and HPX expressly set forth in ~~accordance with a registration statement that has been declared effective~~ this Subscription Agreement, in making its investment or ~~(ii)~~ decision to invest in the ~~opinion~~ 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 ~~counsel for~~ its affiliates and consolidated affiliated entities (together with the ~~Company such Securities may be sold without registration under~~ Issuer, the ~~Securities Act, as well as any applicable~~ “~~blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT~~Group”), ~~OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE~~HPX, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the ~~SEC nor any state securities commission has approved~~ Company and the ~~Securities or passed upon or endorsed~~ Transactions and made its own assessment and is satisfied concerning the ~~merits of the offering or confirmed the accuracy or determined the adequacy of any information provided~~ relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. ~~This offering~~ Subscriber has ~~not been reviewed~~ received access to and has had an adequate opportunity to review the documents made available to Subscriber by ~~any Federal, state or other regulatory authority. (j) The undersigned~~ HPX and ~~his, her or its Advisors~~the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had ~~a reasonable~~ the full opportunity to ask such questions of and receive such answers from a HPX and the Issuer or any person or persons acting on their behalf ~~of the Company~~ concerning the ~~offering of the Securities~~ terms and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations conditions of an investment in the ~~Securities~~Shares, have obtained such materials or information as Subscriber and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Companysuch Subscriber’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisorsprofessional 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 ~~offering~~ offer and sale of the ~~Securities. (p) The undersigned agrees, acknowledges and understands that during~~ Shares. Except for the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements ~~will survive the completion~~ of the ~~issuance~~ 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 ~~Securities hereunder~~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. ~~The undersigned~~ To induce the Issuer to issue the Shares and the Warrants to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates,~~ HPX and acknowledges and agrees with the Issuer and HPX as follows~~, in each case as of the date hereof~~: (a) ~~The undersigned~~ Subscriber has ~~full~~ been duly formed or incorporated and is validly existing 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~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . (b) This Subscription Agreement has been duly authorized, ~~if applicable~~approved by all necessary action, validly executed and delivered by Subscriber. The purchase of the Shares is fully consistent with the financial needs, objectives and conditions of the Subscriber and complies and is fully consistent with all investment policies, guidelines and other restrictions applicable to the Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ binding agreement of the Issuer and HPX, this Subscription Agreement is the valid and binding obligation of 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 ~~undersigned~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (bc) The ~~undersigned acknowledges his~~execution, ~~her~~ delivery and performance of this Subscription Agreement (including compliance by Subscriber with all of the provisions hereof), and the consummation of the transactions contemplated 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 ~~understanding~~ 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, that would reasonably be expected to adversely affect the Subscriber’s ability to acquire and hold Shares and to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) 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 or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect. (d) In the event (i) Subscriber is located in the United States or is a U.S. person, Subscriber (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), (9) or (12) of Regulation D under the Securities Act), in either case satisfying the applicable requirements set forth on Schedule I, and an “institutional account” as defined in FINRA Rule 4512(c), and is not an entity formed for the specific purpose of acquiring the Shares, (B) 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, (C) has exercised independent judgment in evaluating its participation in the purchase of the Shares, (D) is aware that the ~~offering and~~ sale ~~of the Securities~~ to it is ~~intended to be exempt~~ 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 ~~1933~~others, or if Subscriber is subscribing for the Shares as ~~amended (the~~ a fiduciary or agent for one or more investor accounts, each owner of such account is a “~~Securities Act”)~~qualified institutional buyer” or an institutional “accredited investor” and Subscriber has full investment discretion with respect to each such account, ~~by virtue of Section 4(a)(2) of the Securities Act~~ and the ~~provisions~~ full power and authority to make the acknowledgements, representations, warranties and agreements herein on behalf of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial each owner of each such account, for investment ~~purposes,~~ 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 ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities~~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) ~~The undersigned has~~ Subscriber is located outside the ~~financial ability~~ 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 ~~bear~~ it is being made in reliance on a private placement exemption from, or in a transaction not subject to, registration under the ~~economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies~~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 ~~no need~~ not purchased such Shares for ~~liquidity with respect to~~ the ~~investment~~ account or benefit of any person located in the ~~Company~~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) ~~The undersigned~~ 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 ~~undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any~~ 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 (~~collectively,~~ the “~~Advisors~~EU Prospectus Regulation”); (iv) Subscriber is resident in the United Kingdom, ~~have received all documents requested~~ Subscriber is a “qualified investor” within the meaning of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the ~~undersigned or Advisors, if any, and have carefully reviewed them and understand~~ European Union (Withdrawal) Act 2018 (the ~~information contained therein, prior to the execution of this Agreement~~“UK Prospectus Regulation”); and (ivv) ~~The undersigned~~ Subscriber is resident in the Federative Republic of Brazil, Subscriber is a professional investor (~~together with his~~investidor profissional) under the definition set out in Resolution No. 30 of the Brazilian securities exchange commission (CVM – Comissão de Valores Mobiliários, ~~her~~ “CVM”) (such rule and all other CVM rules and regulations relating to the offering of securities, the “Brazilian Offering Regulations”), formed or ~~its Advisors~~resident in a jurisdiction other than the Federative Republic of Brazil, ~~if any) has such knowledge~~ and ~~experience~~ able to hold securities and engage in financial ~~and business matters as to be capable~~ settlement of ~~evaluating the merits and risks of the prospective investment~~ securities transactions with funds held in the ~~Securities~~United States. ~~If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c)~~ The information ~~in the Investor Questionnaire (attached as Appendix A) completed and executed~~ provided by ~~the undersigned (the “Investor Questionnaire”)~~ Subscriber on Schedule I is true and ~~accurate~~ correct in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) ~~The undersigned represents~~Together with its investment adviser, ~~warrants and agrees~~ if applicable, Subscriber understands that ~~he, she or it will~~ the Shares are being offered in a transaction not ~~sell or otherwise transfer~~ involving any public offering within the ~~Securities without registration under~~ meaning of the Securities Act or ~~an exemption therefrom~~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 ~~fully understands and agrees~~ that the ~~undersigned must bear~~ offer and sale of the ~~economic risk of his, her or its purchase because, among other reasons, the Securities~~ Shares have not been registered under the Securities ~~Act~~ Act, the Brazilian Offering Regulations or ~~under~~ any other applicable securities laws. Subscriber understands that the ~~securities laws of any state and, therefore, can~~Shares may not be offered, resold, ~~pledged~~transferred, ~~assigned~~ pledged or otherwise disposed of ~~unless they are subsequently registered~~ by Subscriber absent an effective registration statement under the Securities ~~Act and under~~ Act, except (i) to the ~~applicable securities laws of such states~~Issuer or a subsidiary thereof, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (~~“Rule 144”), and they may not be sold~~ ii) to non-U.S. persons pursuant to ~~Rule 144 unless all~~ offers and sales that occur solely outside the United States within the meaning of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration Regulation S under the Securities Act or (iii) pursuant to another applicable ~~state securities laws. The undersigned understands that any sales or transfers~~ 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 ~~further restricted by state securities laws~~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 understands and agrees that the Shares will be subject to the foregoing transfer restrictions and, as a result, Subscriber may not be able to readily offer, resell, transfer or pledge or otherwise dispose of 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, transfer or disposition of any of the Shares. (f) ~~No representations or warranties~~ Subscriber is purchasing the Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants, statements or agreements made to Subscriber by or on behalf of the ~~undersigned~~ 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 ~~the Company~~implication (including by omission), other than ~~any representations~~ those representations, warranties, covenants, statements and agreements of the ~~Company contained herein or~~ Issuer and HPX expressly set forth in ~~the Purchase Agreement or in any document referred to in the Purchase~~ this Subscription Agreement, and ~~in subscribing for the Securities the undersigned~~ Subscriber is not relying ~~upon~~ on any ~~representations~~ representations, warranties, covenants, statements or agreements other than those ~~contained herein or~~ expressly set forth in ~~the Purchase Agreement or in any document referred to in the Purchase~~ this Subscription Agreement. (g) ~~The undersigned understands and acknowledges~~ Subject to the assumption that ~~his, her or its purchase~~ the assets of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with Issuer do not constitute “plan assets” under the U.S. ~~Securities and Exchange Commission~~ Employee Retirement Income Security Act of 1974, as amended (“~~SEC~~ERISA”), ~~including~~ if Subscriber is or is acting on behalf of 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 U.S. Internal Revenue Code of 1986, as amended (the “Code”), or an employee benefit plan that is a governmental plan (as defined in ~~particular~~ 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 ~~matters~~ 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 ~~caption~~ Code (“~~Risk Factors~~Similar Law”), or an entity whose underlying assets are considered to include “plan assets” ~~contained~~ 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 ~~Company’s Annual Report on Form 10-K filed with~~ Code, or under Similar Law or otherwise violate the ~~SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q.~~provisions thereunder. (h) ~~The undersigned understands~~ 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 ~~agrees that~~ each of the ~~Securities may bear substantially~~ Issuer’s and HPX’s representations, warranties and agreements contained in Section 3.1 and Section 3.2, respectively. Without limiting the ~~following legend until~~ 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 (iincluding 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) ~~such Securities shall have been registered under~~ other than the ~~Securities Act~~ representations and ~~effectively disposed~~ warranties of the Issuer and HPX expressly set forth in ~~accordance with a registration statement that has been declared effective~~ this Subscription Agreement, in making its investment or ~~(ii)~~ decision to invest in the ~~opinion~~ 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 ~~counsel for~~ its affiliates and consolidated affiliated entities (together with the ~~Company such Securities may be sold without registration under~~ Issuer, the ~~Securities Act, as well as any applicable~~ “~~blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT~~Group”), ~~OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE~~HPX, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the ~~SEC nor any state securities commission has approved~~ Company and the ~~Securities or passed upon or endorsed~~ Transactions and made its own assessment and is satisfied concerning the ~~merits of the offering or confirmed the accuracy or determined the adequacy of any information provided~~ relevant tax and other economic considerations relevant to Subscriber’s investment in the Shares. ~~This offering~~ Subscriber has ~~not been reviewed~~ received access to and has had an adequate opportunity to review the documents made available to Subscriber by ~~any Federal, state or other regulatory authority. (j) The undersigned~~ HPX and ~~his, her or its Advisors~~the Group. Subscriber and Subscriber’s professional advisor(s), if any, have had ~~a reasonable~~ the full opportunity to ask such questions of and receive such answers from a HPX and the Issuer or any person or persons acting on their behalf ~~of the Company~~ concerning the ~~offering of the Securities~~ terms and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations conditions of an investment in the ~~Securities~~Shares, have obtained such materials or information as Subscriber and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Companysuch Subscriber’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisorsprofessional 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 ~~offering~~ offer and sale of the ~~Securities. (p) The undersigned agrees, acknowledges and understands that during~~ Shares. Except for the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements ~~will survive the completion~~ of the ~~issuance~~ 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 ~~Securities hereunder~~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. ~~The undersigned~~ To induce the Issuer to sell the Shares and / or to issue the Warrants (as the case may be) to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date hereof, as follows: 2.1.1 Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation (~~a) The undersigned has full~~ if such concept exists in such jurisdiction), with power and authority to enter ~~into~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . 2.1.2 This Subscription Agreement has been duly authorized, ~~if applicable~~validly executed and delivered by Subscriber and, assuming that this Subscription Agreement has been duly authorized, executed and ~~this Agreement constitutes a~~ delivered by the Issuer, shall constitute the valid and ~~legally~~ binding obligation of ~~the undersigned. (b) The undersigned acknowledges his~~Subscriber, ~~her~~ and is enforceable against Subscriber in accordance with its terms, except as may be limited or ~~its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”),~~ otherwise affected by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) ~~The undersigned is acquiring~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the ~~Securities solely for the undersigned’s own beneficial account, for investment purposes~~rights of creditors generally, and ~~not with view to, or resale in connection with, any distribution of the Securities;~~ (ii) ~~The undersigned has the financial ability to bear the economic risk~~ principles of ~~his~~equity, ~~her~~ whether considered at law or ~~its investment~~equity (including concepts of materiality, ~~has adequate means for providing for their current needs~~ reasonableness, good faith and ~~contingencies, and has no need for liquidity~~ fair dealing with respect to ~~the investment in the Company;~~those jurisdictions that recognize such concepts). ~~(iii)~~ 2.1.3 The ~~undersigned~~ execution, delivery and ~~the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested~~ performance by ~~the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution~~ Subscriber of this ~~Agreement; and~~ Subscription Agreement (~~iv) The undersigned (together~~ including compliance by Subscriber with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the ~~conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a~~provisions hereof) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement 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 pursuant to the terms of any indenture, mortgage, charge, 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 ~~Purchase~~ property or assets of Subscriber is subject, (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule or regulation or any other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that has a material adverse effect on the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security legal authority of ~~the Company~~Subscriber to enter into and timely perform its obligations under this Subscription Agreement. ~~(q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.~~

Appears in 1 contract

Sources: Subscription Agreement (Ads-Tec Energy Public LTD Co)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Company to issue the Shares to Subscriber at the Closing, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the Company and ~~its affiliates,~~ acknowledges and agrees with the Company as follows, : 2.1.1 Subscriber has been duly formed or incorporated and is validly existing and in ~~each case as~~ good standing (or such equivalent concept to the extent it exists under the laws of the ~~date hereof: (a~~jurisdiction of incorporation or formation) ~~The undersigned has full~~ under the laws of its jurisdiction of incorporation or formation, with power and authority to enter ~~into~~ into, deliver, and perform its obligations under this Subscription Agreement, . 2.1.2 This Subscription Agreement (including the ~~execution and delivery of which~~ transactions contemplated herein) has been duly authorized, ~~if applicable,~~ validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ binding agreement of the Company, 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 ~~undersigned~~rights of creditors generally and (ii) general principles of equity, whether considered at law or equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). ~~(b)~~ 2.1.3 The ~~undersigned acknowledges his~~execution and delivery of this Subscription Agreement and the performance by Subscriber of its obligations under this Subscription Agreement, ~~her or its understanding that~~ including the ~~offering and sale~~ purchase of the ~~Securities~~ 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, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is ~~intended~~ 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 ~~exempt from~~ expected to have, individually or in the aggregate, a material adverse effect on the ability of, or prevent, impair, delay or impede the legal authority of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule, regulation or other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 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) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act ~~of 1933, as amended~~ (the “Securities Act”)~~, by virtue~~ ) or an “accredited investor” (within the meaning of ~~Section 4(a)(2~~Rule 501(a) of Regulation D under the Securities Act ~~and the provisions of Regulation D promulgated thereunder~~ (“Regulation D”)~~. In furtherance thereof~~), in each case, satisfying the ~~undersigned represents~~ applicable requirements set forth on Schedule I attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and ~~warrants~~ accordingly, Subscriber is aware that this offering of 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 ~~Company and its affiliates~~ 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 ~~follows:~~ it forms part of domestic law by virtue of the European Union (iWithdrawal) ~~The undersigned is~~ Act 2018 (the “UK Prospectus Regulation”), (v) acquiring the ~~Securities solely~~ Shares only for its own account and not for the ~~undersigned’s own beneficial~~ 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 “accredited investor” and Subscriber has full investment discretion with respect to each such account, ~~for investment purposes~~and the full power and authority to make the acknowledgments, representations, warranties, and agreements herein on behalf of each owner of each such account, and (vi) not acquiring the Shares with a view to, or ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities;~~Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I attached hereto, where such information provided shall be accurate and complete in all material respects). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. 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 that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities 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 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 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 Company or a subsidiary thereof, (ii) ~~The undersigned has~~ to non-U.S. persons pursuant to offers and sales that occur solely outside the ~~financial ability~~ 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 or book entries representing the Shares (if any) 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 and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that 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 Shares and may be required to bear the ~~economic~~ financial risk of ~~his~~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, ~~her~~ resale, pledge, or transfer of any of the 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. 2.1.9 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants, or agreements made to Subscriber by the Company or any of its 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 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. 2.1.10 Subscriber represents and warrants that it (i) is purchasing the Shares for investment, (ii) has ~~adequate means~~ 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 Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its 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 Internal Revenue Code of 1986, as amended (the “Code”), or any applicable Similar Law (as defined below). 2.1.12 In making its decision to subscribe for ~~providing for their current needs~~ and ~~contingencies~~purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the Company’s representations, warranties and 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 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 ~~no need for liquidity~~ had an adequate opportunity to review and understand 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 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 Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had an opportunity to review the documents made available to Subscriber by the Company; , (~~iii~~the “Disclosure Package”), provided by the Company and any such documents available on the Securities and Exchange Commission’s (the “Commission”) ~~The undersigned~~ ▇▇▇▇▇ system. 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 and conducted and completed their own independent diligence concerning the Company, the Shares, the offer and sale of the Shares and the ~~undersigned’s attorney~~other transactions contemplated by this Subscription Agreement. Based upon such information as Subscriber has deemed appropriate, ~~accountant~~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, ~~purchaser representative and/or tax advisor~~warranties and agreements of the Company expressly set forth in this Subscription Agreement, if 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 foregoing (collectively, “~~Advisors~~Representatives”)) have made any independent investigation with respect to the Company or the Shares or the accuracy, ~~have received all documents requested~~ completeness or adequacy of any information supplied to Subscriber by the ~~undersigned~~ Company or ~~Advisors~~any of its subsidiaries or affiliates. However, ~~if any~~neither any such inquiries, nor any due diligence investigation conducted by Subscriber or any of Subscriber’s professional advisors nor anything else contained herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Company’s representations, warranties, covenants and 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 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. 2.1.14 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber, on the one hand, and ~~have carefully reviewed them~~ the Company or its representatives, on the other hand. The Shares were offered to Subscriber solely by such direct contact. 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 Shares (i) were not offered to it by any form of general solicitation or general advertising, including methods described in Section 502(c) of Regulation D under the Securities Act, and ~~understand~~ (ii) are not being offered to it in a manner involving a public offering under, or, to its knowledge, in a distribution in violation of, the ~~information contained therein, prior~~ Securities Act or any other applicable securities laws. 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~execution~~ purchase and ownership of ~~this Agreement; and~~ the Shares, including those set forth in the Disclosure Package and the Company SEC Documents (~~iv) The undersigned (together with his~~as defined below). Subscriber is a sophisticated institutional investor, ~~her or its Advisors~~is able to fend for itself in the transactions contemplated herein, ~~if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is 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 ~~each Advisor~~that none of the Company or any of its 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 the purchase and sale of the Shares hereunder meets the institutional customer exemption under FINRA Rule 2111(b). 2.1.16 Subscriber represents and acknowledges that Subscriber, alone, or together with its professional advisor(s), if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, adequately analyzed and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.risks

Appears in 1 contract

Sources: Subscription Agreement (Captivision Inc.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and 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. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming this Subscription Agreement constitutes 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 (ai) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. 2.1.3 The ~~undersigned~~ 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 prevent or delay Subscriber’s timely performance of its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) 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 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 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) satisfying the applicable requirements set forth on Schedule I, (ii) 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 an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized~~each owner of each such account, ~~if applicable,~~ for investment purposes only and ~~this Agreement constitutes~~ not with a ~~valid and legally binding obligation~~ view to any distribution of the ~~undersigned.~~ Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (biii) ~~The undersigned acknowledges his~~is not acquiring the Shares with a view to, ~~her~~ or ~~its understanding that the offering and~~ 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). Subscriber is ~~intended to be exempt from registration~~ not an entity formed for the specific purpose of acquiring the 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 ~~Act~~ Law of ~~1933~~1968, as amended (the “Israeli Securities ~~Act~~Law”), by ~~virtue~~ complying with at least one of ~~Section 4(a)(2~~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 that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~provisions~~ 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) pursuant to offers and sales that qualify as “offshore transactions” within the meaning of Regulation D 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 (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 Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated ~~thereunder~~ under the Securities Act. 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 independent legal counsel prior to making any offer, resale, pledge or transfer of any of the 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.” 2.1.7 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, the SPAC or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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. 2.1.8 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“~~Regulation D~~ERISA”)~~. In furtherance thereof~~, ~~the undersigned~~ 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 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 purchase the ~~Company~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~its affiliates as follows:~~ the Issuer’s representations, warranties and 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) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities; (ii) The undersigned has ~~the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies~~received, and has ~~no need for liquidity~~ 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, 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 ~~Company; (iii) The undersigned and~~ Shares. Subscriber acknowledges that it has had an adequate opportunity to review the ~~undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all~~ documents ~~requested~~ made available to the Subscriber by the ~~undersigned or Advisors~~Issuer in the virtual dataroom to which Subscriber has been granted access. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and ~~have carefully reviewed them~~ obtain such information as Subscriber and ~~understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors~~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. 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 provided to Subscriber is preliminary and subject to change, and that any changes to 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 Shares hereunder. 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact from either one of the Placement Agents or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives (including any of the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and such Placement Agent or the Issuer. Subscriber did not become aware of this offering of the Shares, nor, to Subscriber’s knowledge, were the 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 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) 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. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the prospective~~ 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. If 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 ~~than an individual~~representation or guarantee, whether written or oral, regarding the ~~undersigned also represents it has not been organized solely for~~ tax consequences of the ~~purpose~~ transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the purchase and sale of ~~acquiring~~ the ~~Securities~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A)(C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating~~ adequately analyzed and fully considered the ~~merits and~~ risks of an investment in the ~~Securities,~~ Shares and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees determined that the ~~undersigned must~~ 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 ~~his, her or its purchase because, among other reasons,~~ a total loss of Subscriber’s investment in the ~~Securities have not been registered under the Securities Act or under the securities laws~~ Issuer. Subscriber acknowledges specifically that a possibility of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities lawstotal loss exists. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned 2.1.13 Subscriber understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” no federal or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ Shares or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the ~~Securities, and the undersigned has relied on the advice of~~Shares. 2.1.14 Subscriber, or ~~has consulted with, only his, her or~~ its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisorsinvestment adviser, if ~~any~~applicable, hereby acknowledges and agrees that (i) each Placement Agent is acting solely as placement agent in connection with the offering of the ~~Securities. (p) The undersigned agrees~~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, ~~acknowledges and understands that during~~ the ~~period commencing on~~ Issuer, the ~~date hereof through~~ SPAC or any other person or entity in connection with the ~~Company’s public announcement~~ offering of the ~~transactions contemplated~~ 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 ~~Purchase Agreement~~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 ~~undersigned will not directly~~ SPAC, or ~~indirectly~~the offering of the Shares, ~~through related parties~~and (iv) no Placement Agent shall have any liability or obligation (including for or with respect to any losses, ~~affiliates~~ claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, ~~purchase~~to Subscriber, ~~sell “short”~~ or ~~“short against the box” (as those terms are generally understood)~~ to any ~~equity security~~ person claiming through Subscriber, in respect of the ~~Company~~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. ~~(q) The foregoing representations, warranties~~ 2.1.15 Subscriber represents and ~~agreements will survive the completion of the issuance of the Securities hereunder.~~warrants that Subscriber

Appears in 1 contract

Sources: Subscription Agreement (Memic Innovative Surgery Ltd.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned hereby acknowledges, agrees with~~ Each Subscriber severally and not jointly represents and warrants to the ~~Company~~ Issuer and ~~its affiliates, as follows, in each case as of the date hereof~~TargetCo that: (a) ~~The undersigned has full power and authority to enter into this Agreement~~Such 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 501(a)(1), (2), (3) or (7) under the ~~execution and delivery of which has been duly authorized~~Securities Act), ~~if applicable~~in each case, ~~and this Agreement constitutes a valid and legally binding obligation~~ satisfying the applicable requirements set forth on Schedule A, (ii) is an “institutional account” (as defined in FINRA Rule 4512(c)), (iii) is not an underwriter (as defined in Section 2(a)(11) of the ~~undersigned. (b~~Securities Act) ~~The undersigned acknowledges his, her or its understanding~~ and is aware that the ~~offering and~~ sale of the ~~Securities~~ PIPE Shares is ~~intended to be exempt~~ being made in reliance on a private placement exemption from registration under the Securities Act ~~of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act~~ and the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the ~~Securities solely~~ Subscription Shares only for its own account and not for the ~~undersigned’s own beneficial~~ account of others, or if such Subscriber is subscribing for the Subscription Shares as a fiduciary or agent for one or more investor accounts, such Subscriber has full investment discretion with respect to each such account, ~~for investment purposes~~and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iv) is not acquiring the Subscription Shares with a view to, or ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities;~~Securities Act. Such Subscriber has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. (b) Such Subscriber is a sophisticated investor, experienced in investing in private placement 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 Subscription Shares. Such Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that such Subscriber’s purchase of the Subscription Shares (i) is fully consistent with its financial needs, objectives and condition, (ii) ~~The undersigned~~ complies and is fully consistent with all investment policies, guidelines and other restrictions applicable to it, (iii) has been duly authorized and approved by all necessary action, (iv) does not and will not violate or constitute a default under such Subscriber’s certificate of incorporation, by-laws or other constituent document or under any law, rule, regulation, agreement or other obligation by which it is bound and (v) is a fit, proper and suitable investment for such Subscriber, notwithstanding the ~~financial ability~~ substantial risks inherent in investing in or holding the Subscription Shares. Such Subscriber is able to bear the ~~economic~~ substantial risks associated with its purchase of the Subscription Shares, including but not limited to loss of its entire investment therein. (c) Such Subscriber acknowledges and agrees that the Subscription Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the Subscription Shares have not been registered under the Securities Act and the Issuer is not required to register the Subscription Shares or the Underlying Shares except as set forth in Section 7 of this PIPE Agreement. Such Subscriber acknowledges and agrees that the Subscription Shares may not be offered, resold, transferred or otherwise disposed of by the 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 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 or (iv) for the avoidance of doubt, pursuant to bona fide pledge arrangements and, in each case, in accordance with any applicable securities laws of the states of the United States and other applicable jurisdictions, and that any certificates or book entry records representing the Subscription Shares shall contain a restrictive legend to such effect. Such Subscriber acknowledges and agrees that the Subscription Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Subscribers may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscription Shares and may be required to bear the financial risk of ~~his~~an investment in the Subscription Shares for an indefinite period of time. Such Subscriber acknowledges and agrees that the Subscription Shares will not be eligible for offer, ~~her~~ resale, transfer, pledge or disposition pursuant to Rule 144 (“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, subject to Section 10 hereof. The Subscribers shall not engage in hedging transactions with regard to the Subscription Shares unless in compliance with the Securities Act. Such Subscriber acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors prior to making any offer, resale, transfer, pledge or disposition of any of the Subscription Shares. (d) Such Subscriber acknowledges and agrees that such Subscriber is purchasing the Subscription Shares from the Issuer. Such Subscriber further acknowledges that there have been no representations and warranties made to such Subscriber by or on behalf of the Issuer or any of its ~~investment~~respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations and warranties of the Issuer expressly set forth in Section 5 of this PIPE Agreement. (e) Such Subscriber acknowledges and agrees that such Subscriber has ~~adequate means for providing for their current needs and contingencies,~~ received and has ~~no need for liquidity~~ 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 Subscription Shares, including, with respect to the Issuer, the Transaction and the business of the Issuer and its subsidiaries. Such Subscriber acknowledges that certain information received was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and 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 such projections. Without limiting the generality of the foregoing, such Subscriber acknowledges that it has reviewed the Issuer’s filings with the SEC. Such Subscriber acknowledges and agrees that such Subscriber and such Subscriber’s professional advisor(s), if any: (i) has conducted its own investigation of the Issuer and the Subscription Shares; (ii) has had access to, and an adequate opportunity to review, financial and other information as it deems necessary to make a decision to purchase the Subscription Shares; (iii) has been offered the opportunity to ask questions of the Issuer and received answers thereto, including on the financial information, as it deemed necessary in connection with its decision to purchase the Subscription Shares; and (iv) has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the ~~Company;~~Subscription Shares. Such Subscriber further acknowledges that the information provided to it is preliminary and subject to change, and that any changes to such information, including, without limitation, any changes based on updated information or changes in terms of the Transaction, shall in no way affect such Subscriber’s obligation to purchase the Subscription Shares hereunder. (~~iii~~f) ~~The undersigned~~ Such Subscriber became aware of this offering of the Subscription Shares solely by means of direct contact between such Subscriber and the ~~undersigned’s attorney~~Issuer or a representative of the Issuer, ~~accountant~~and the Subscription Shares were offered to such Subscriber solely by direct contact between such Subscriber and the Issuer or a representative of the Issuer. Such Subscriber did not become aware of this offering of the Subscription Shares, ~~purchaser representative and/or tax advisor~~nor were the Subscription Shares offered to such Subscriber, if by any other means. Such Subscriber acknowledges that the Subscription Shares (~~collectively~~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, ~~“Advisors”~~or in a distribution in violation of, the Securities Act, or any state securities laws. Such Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Issuer, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), ~~have received all documents requested by~~ other than the ~~undersigned~~ representations and warranties of the Issuer contained in Section 5 of this PIPE Agreement, in making its investment or ~~Advisors~~decision to invest in the Issuer. Such Subscriber is relying exclusively on its own sources of information, ~~if any,~~ investment analysis and ~~have carefully reviewed them and understand the information contained therein, prior~~ due diligence (including professional advice that it deems appropriate) with respect to the ~~execution~~ Transaction, the Subscription Shares 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. Based on such information as such Subscriber has deemed appropriate, such Subscriber has independently made its own analysis and decision to enter into this PIPE Agreement~~; and~~. (ivg) ~~The undersigned (together~~ Such Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscription Shares, including those set forth in the Issuer’s filings with ~~his, her or its Advisors, if any)~~ the SEC. Such Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the prospective~~ an investment in the ~~Securities~~Subscription Shares, and such Subscriber has sought such accounting, legal and tax advice as such Subscriber has considered necessary to make an informed investment decision. ~~If other than~~ Such Subscriber is able to fend for itself in the transactions contemplated herein, has exercised its independent judgment in evaluating its investment in the Subscription Shares, is a sophisticated investor, experienced in investing in private placement 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 such Subscriber has sought such accounting, legal and tax advice as such Subscriber has considered necessary to make an ~~individual~~informed investment decision. Such Subscriber acknowledges that the Subscribers shall be responsible for any of the Subscribers’ tax liabilities that may arise as a result of the transactions contemplated by this PIPE Agreement, and that the ~~undersigned also represents it~~ Issuer has not ~~been organized solely for~~ provided any tax advice or any other representation or guarantee regarding the ~~purpose~~ tax consequences of ~~acquiring~~ the ~~Securities~~transactions contemplated by the PIPE Agreement. (ch) ~~The information~~ Alone, or together with any professional advisor(s), such Subscriber has been furnished with all materials that it considers relevant to an investment in the ~~Investor Questionnaire (attached as Appendix A) completed~~ Subscription Shares, has had a full opportunity to ask questions of and ~~executed by~~ receive answers from the ~~undersigned (~~Issuer or any person or persons acting on behalf of the ~~“Investor Questionnaire”) is true~~ Issuer concerning the terms and ~~accurate~~ conditions of an investment in ~~all respects~~the Subscription Shares, has adequately analyzed and fully considered the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the ~~Securities,~~ Subscription Shares and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees determined that the ~~undersigned must~~ Subscription 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 his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws a total loss of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or Subscriber’s investment in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and Subscription Shares. Such Subscriber acknowledges specifically that ~~his, her or its purchase~~ a possibility of ~~the Securities is a speculative investment that involves a high degree of risk and the potential~~ total loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIREDexists. (i) ~~Neither~~ In making its decision to purchase the ~~SEC nor any~~ Subscription Shares, such Subscriber has relied solely upon independent investigation made by such Subscriber and the representations and warranties of the Issuer and TargetCo in Section 5. (j) Such Subscriber acknowledges and agrees that no federal or state ~~securities commission~~ agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ Subscription Shares or made any findings or determination as to the ~~full satisfaction~~ fairness of ~~the undersigned and his, her or its Advisors, if any~~this investment. (k) ~~The undersigned~~ Such Subscriber has been duly formed or incorporated and is ~~unaware of,~~ validly existing and is in ~~no way relying on~~good standing under the laws of its jurisdiction of formation or incorporation, with power and ~~did not become aware of the offering of the Securities through or as a result of~~authority to enter into, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering deliver and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generallyperform its obligations under this PIPE Agreement. (l) The ~~undersigned~~ execution, delivery and performance by such Subscriber of this PIPE Agreement are within the powers of such Subscriber, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which such Subscriber is a party or by which such Subscriber is bound, and will not violate any provisions of such Subscriber’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature of such Subscriber on this PIPE Agreement is genuine, and the signatory has ~~taken no action that would give rise~~ legal competence and capacity to ~~any claim by any person for brokerage commissions, finders’ fees~~ execute the same or the ~~like~~ signatory has been duly authorized to execute the same, and, assuming that this PIPE Agreement constitutes the legal, valid and binding agreement of the other parties hereto, this PIPE Agreement constitutes a legal, valid and binding obligation of such Subscriber, 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 ~~this Agreement~~ or affecting the ~~transactions contemplated hereby~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. (m) ~~The undersigned is not relying~~ Neither the Subscribers nor any of their 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 named on the ~~Company with respect~~ Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, the Sectoral Sanctions Identification List, or any other similar list of sanctioned persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“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, “Sanctions Lists”); (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located 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, 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; or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Such Subscriber represents that if it is a financial institution subject to the ~~legal~~Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), ~~tax, economic and related considerations~~ as amended by the USA PATRIOT Act of ~~an investment in the Securities~~2001, and ~~the undersigned has relied on the advice of, or has consulted with, only his, her or~~ its ~~own Advisors.~~ implementing regulations (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreementcollectively, the ~~undersigned will not directly or indirectly~~“BSA/PATRIOT Act”), through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties that such Subscriber maintains policies and ~~agreements will survive the completion of the issuance of the Securities hereunder.~~procedures rea

Appears in 1 contract

Sources: Pipe Agreement (GSR II Meteora Acquisition Corp.)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Note, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and as of the Closing Date, as follows: ~~(a) The undersigned~~ 2.1.1. Subscriber has ~~full power~~ [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~~ into, deliver and perform its obligations under this Subscription Agreement~~, the execution and delivery of which~~ . 2.1.2. This Subscription Agreement has been duly authorized, ~~if applicable,~~ validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes a the valid and ~~legally~~ 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 ~~undersigned~~rights of creditors generally, and (ii) principles of equity, whether considered at law or equity. ~~(b)~~ 2.1.3. The ~~undersigned acknowledges his~~execution, ~~her or its understanding that~~ delivery and performance by Subscriber of this Subscription Agreement and the ~~offering and sale~~ consummation of the ~~Securities~~ 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 or (ii)] result in any violation of any law, 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 of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”). 2.1.4. Subscriber (i) is ~~intended to be exempt from registration~~ (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)~~, by virtue of Section 4(a)(2~~) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities ~~Act~~ 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 ~~provisions~~ type contemplated by this Subscription Agreement and capable of ~~Regulation D promulgated thereunder~~ 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 I, 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, (~~“Regulation D”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows: (i~~ii) ~~The undersigned~~ is acquiring the ~~Securities solely~~ Note only for its own account and not for the ~~undersigned’s own beneficial~~ account of others, or if Subscriber is subscribing for the Note as a fiduciary or agent for one or more investor accounts, 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, warranties and agreements herein on behalf of each owner of each such account, for investment ~~purposes,~~ 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 ~~resale~~ for offer or sale in connection with, any distribution thereof in violation of the ~~Securities;~~Securities Act (and shall provide the requested information on Schedule I following the signature page hereto). Accordingly, Subscriber understands that the 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 Note.] 2.1.5. Subscriber understands that the Note is being offered in a transaction not involving any public offering within the meaning of the Securities 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 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 that the Note may not be offered, sold, 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) ~~The undersigned has~~ to non-U.S. persons pursuant to offers and sales that occur solely outside the ~~financial ability~~ United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from or in a transaction not subject to the registration requirements of the Securities Act, and in each case, in accordance with any other applicable securities laws, and that the Note 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 Note will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Note will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the Note and may be required to bear the ~~economic~~ financial risk of ~~his~~an investment in the Note for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, ~~her~~ resale, pledge or transfer of the Note. Subscriber has determined based on its ~~investment~~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. Subscriber understands and agrees that Subscriber is purchasing the Note directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, Solaria, FACT, or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription 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 or a side letter between the Issuer and the Subscriber. 2.1.7. In making its decision to purchase the Note, Subscriber represents that it has ~~adequate means for providing for their current needs~~ relied solely upon independent investigation made by Subscriber and ~~contingencies~~the representations, warranties and covenants of the 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 ~~no need for liquidity~~ not relied on any representations, warranties, statements or other information provided by anyone. Subscriber acknowledges and agrees that Subscriber has received, had 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 ~~investment~~ Note, including with respect to the Issuer and the Transactions, and that such information is preliminary and subject to change and that none of the Issuer or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other financial information (whether historical or in the ~~Company; (iii~~form of financial forecasts or projections) ~~The undersigned~~ of the Issuer have been prepared and ~~the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested~~ reviewed solely by the ~~undersigned~~ Issuer and its officers and employees and have not been reviewed by any outside party or, except as expressly set forth therein, certified or ~~Advisors~~audited by an independent third-party auditor or audit firm. 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, receive such answers, including on the financial information, and ~~have carefully reviewed them~~ obtain such information as Subscriber and ~~understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors~~such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Note. 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 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 Note. 2.1.8. Subscriber became aware of this offering of the Note 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 Note, nor was the Note offered to Subscriber, by any general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Note was 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 acknowledges that it is aware that there are substantial risks incident to the subscription and ownership of the 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 the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is 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 ~~each Advisor~~Subscriber has sought such accounting, ~~if any~~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 Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, ~~has disclosed to~~ and that neither the ~~undersigned in writing (a copy~~ Issuer nor any of ~~which is annexed to this Agreement) the specific details of~~ their respective agents or affiliates, have provided any ~~and all past, present or future relationships, actual or contemplated, between the Advisor and the Company~~ tax advice or any ~~affiliate thereof~~other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully 2.1.10. Subscriber understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” federal or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering of the Note or ~~confirmed~~ made any findings or determination as to the ~~accuracy or determined~~ fairness of an investment in the ~~adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority~~Note. 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 (ji) ~~The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from~~ a person or entity named on the List of Specially Designated Nationals and Blocked 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, “Sanctions Lists”, or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly [owned or] controlled by, or acting on behalf of, one or more persons on 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, Venezuela, the Crimea region of Ukraine, the ~~Company concerning~~ so-called Donetsk People’s Republic, the ~~offering~~ 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 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 is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the ~~Securities~~ “BSA/PATRIOT Act”), Subscriber represents that 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 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 ~~business~~United Kingdom, ~~financial condition~~including for the screening of its investors against the Sanctions Lists and the OFAC sanctions programs. Subscriber further represents and warrants that, ~~results of operations and prospects of the Company, and all such questions have been answered~~ to the ~~full satisfaction of~~ extent required, it maintains policies and procedures reasonably designed to ensure that the ~~undersigned~~ funds held by Subscriber and ~~his~~used to purchase the Note were legally derived and in compliance with OFAC sanctions programs and were not obtained, ~~her~~ directly or ~~its Advisors~~indirectly, ~~if any~~from a Prohibited Investor. 2.1.12. Subscriber is not a foreign person (kas defined in 31 C.F.R. Part 800.224) ~~The undersigned is unaware of, is~~ in ~~no way relying on,~~ 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 ~~did not become aware of~~ that will acquire a substantial interest in the ~~offering of the Securities through or~~ Issuer as a result ~~of, any form~~ of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the ~~Internet, in connection with the offering~~ purchase and sale of the ~~Securities~~ 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 ~~is not subscribing for Securities~~ no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and ~~did not become aware of~~ after the ~~offering of the Securities through or~~ Closing as a result of ~~any seminar or meeting~~ the purchase and sale of the Note hereunder. 2.1.13. [On the date the Purchase Price would be required to ~~which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known~~ be funded to the ~~undersigned~~ Issuer pursuant to Section 3.1 Subscriber will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1.] 2.1.14. No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with ~~investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to~~ this Subscription Agreement or the transactions contemplated ~~hereby. (m) The undersigned is not relying~~ hereby in such a way as to create any liability on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own AdvisorsIssuer. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

Appears in 1 contract

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

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Shares to Subscriber, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates~~acknowledges and agrees with the Issuer, ~~as follows, in each case~~ as of the date ~~hereof~~hereof and 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. 2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming this Subscription Agreement constitutes 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 (ai) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity. 2.1.3 The ~~undersigned~~ 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 prevent or delay Subscriber’s timely performance of its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (iii) 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 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 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) satisfying the applicable requirements set forth on Schedule I, (ii) 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 an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to ~~enter into this Agreement~~make the acknowledgements, ~~the execution~~ representations, warranties and ~~delivery~~ agreements herein on behalf of ~~which has been duly authorized~~each owner of each such account, ~~if applicable,~~ for investment purposes only and ~~this Agreement constitutes~~ not with a ~~valid and legally binding obligation~~ view to any distribution of the ~~undersigned.~~ Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (biii) ~~The undersigned acknowledges his~~is not acquiring the Shares with a view to, ~~her~~ or ~~its understanding that the offering and~~ 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). Subscriber is ~~intended to be exempt from registration~~ not an entity formed for the specific purpose of acquiring the 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 ~~Act~~ Law of ~~1933~~1968, as amended (the “Israeli Securities ~~Act~~Law”), by ~~virtue~~ complying with at least one of ~~Section 4(a)(2~~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 that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the ~~provisions~~ 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) pursuant to offers and sales that qualify as “offshore transactions” within the meaning of Regulation D 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 (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 Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144A promulgated ~~thereunder~~ under the Securities Act. 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 independent legal counsel prior to making any offer, resale, pledge or transfer of any of the 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.” 2.1.7 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, the SPAC or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements 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. 2.1.8 If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“~~Regulation D~~ERISA”)~~. In furtherance thereof~~, ~~the undersigned~~ 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 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 purchase the ~~Company~~ Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and ~~its affiliates as follows:~~ the Issuer’s representations, warranties and 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) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities; (ii) The undersigned has ~~the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies~~received, and has ~~no need for liquidity~~ 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, 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 ~~Company; (iii) The undersigned and~~ Shares. Subscriber acknowledges that it has had an adequate opportunity to review the ~~undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all~~ documents ~~requested~~ made available to the Subscriber by the ~~undersigned or Advisors~~Issuer in the virtual dataroom to which Subscriber has been granted access. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the opportunity to ask such questions, receive such answers and ~~have carefully reviewed them~~ obtain such information as Subscriber and ~~understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors~~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. 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 provided to Subscriber is preliminary and subject to change, and that any changes to 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 Shares hereunder. 2.1.10 Subscriber became aware of this offering of the Shares solely by means of direct contact from either one of the Placement Agents or the Issuer as a result of a pre-existing substantive relationship (as interpreted in guidance from the Securities and Exchange Commission (the “Commission”) under the Securities Act) with the Issuer or its representatives (including any of the Placement Agents), and the Shares were offered to Subscriber solely by direct contact between Subscriber and such Placement Agent or the Issuer. Subscriber did not become aware of this offering of the Shares, nor, to Subscriber’s knowledge, were the 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 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) 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. 2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of ~~the prospective~~ 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. If 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 ~~than an individual~~representation or guarantee, whether written or oral, regarding the ~~undersigned also represents it has not been organized solely for~~ tax consequences of the ~~purpose~~ transactions contemplated by this Subscription Agreement. Subscriber understands and acknowledges that the purchase and sale of ~~acquiring~~ the ~~Securities~~Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A)(C) or (J) and (ii) the institutional customer exemption under FINRA Rule 2111(b). (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of2.1.12 Alone, or together with any professional advisor(s), Subscriber represents and acknowledges that Subscriber has ~~consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating~~ adequately analyzed and fully considered the ~~merits and~~ risks of an investment in the ~~Securities,~~ Shares and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees determined that the ~~undersigned must~~ 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 ~~his, her or its purchase because, among other reasons,~~ a total loss of Subscriber’s investment in the ~~Securities have not been registered under the Securities Act or under the securities laws~~ Issuer. Subscriber acknowledges specifically that a possibility of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities lawstotal loss exists. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned 2.1.13 Subscriber understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” no federal or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission agency has ~~approved the Securities or~~ passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the ~~Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered~~ Shares or made any findings or determination as to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations fairness of an investment in the ~~Securities, and the undersigned has relied on the advice of~~Shares. 2.1.14 Subscriber, or ~~has consulted with, only his, her or~~ its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisorsinvestment adviser, if ~~any~~applicable, hereby acknowledges and agrees that (i) each Placement Agent is acting solely as placement agent in connection with the offering of the ~~Securities. (p) The undersigned agrees~~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, ~~acknowledges and understands that during~~ the ~~period commencing on~~ Issuer, the ~~date hereof through~~ SPAC or any other person or entity in connection with the ~~Company’s public announcement~~ offering of the ~~transactions contemplated~~ 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 ~~Purchase Agreement~~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 ~~undersigned will not directly~~ SPAC, or ~~indirectly~~the offering of the Shares, ~~through related parties~~and (iv) no Placement Agent shall have any liability or obligation (including for or with respect to any losses, ~~affiliates~~ claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, ~~purchase~~to Subscriber, ~~sell “short”~~ or ~~“short against the box” (as those terms are generally understood)~~ to any ~~equity security~~ person claiming through Subscriber, in respect of the ~~Company~~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. ~~(q) The foregoing representations, warranties~~ 2.1.15 Subscriber represents and ~~agreements will survive the completion of the issuance of the Securities hereunder.~~warrants that Subscriber

Appears in 1 contract

Sources: Subscription Agreement (MedTech Acquisition Corp)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned~~ To induce the Issuer to issue the Shares to Subscriber at the Closing, Subscriber hereby ~~acknowledges, agrees with and~~ represents and warrants to the ~~Company~~ Issuer and ~~its affiliates,~~ GOGN and acknowledges and agrees with the Issuer and ▇▇▇▇ 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, and perform its 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. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer and GOGN, 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) general principles of equity, whether considered at law or equity (including concepts of materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that recognize such concepts). 2.1.3 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 (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, 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, individually or in the aggregate, a material adverse effect on the ability of, or prevents, impairs, delays or impedes the legal authority of, Subscriber to enter into and timely perform in any material respect its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of Subscriber, or (iii) result in any violation of any law, statute or any judgment, order, rule, regulation or other legally enforceable requirement of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that would reasonably be expected to have a Subscriber Material Adverse Effect. 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) 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~~ case, satisfying the applicable requirements set forth on Schedule I attached hereto, (ii) an “institutional account” as defined in FINRA Rule 4512(c) (and accordingly, Subscriber is aware that this offering of the ~~date hereof:~~ Shares meets the exemptions from filing under FINRA Rule 5123(b)(1)(A), (aC) ~~The undersigned~~ 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 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 ~~enter into this Agreement~~make the acknowledgements, ~~the execution and delivery of which has been duly authorized~~representations, ~~if applicable~~warranties, and ~~this Agreement constitutes~~ agreements herein on behalf of each owner of each such account, and (vi) not acquiring the Shares with a ~~valid and legally binding obligation of the undersigned. (b) The undersigned acknowledges his~~view to, ~~her~~ or ~~its understanding that the offering and~~ for offer or sale in connection with, any distribution thereof in violation of the Securities Act or any other securities laws of the United States or any other jurisdiction (and shall provide the requested information on Schedule I attached hereto, where such information provided shall be accurate and complete in all material respects). Subscriber is ~~intended~~ not an entity formed for the specific purpose of acquiring the Shares. 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 ~~be exempt from registration~~ 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 that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities 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 Shares have not been registered under the Securities Act or any other securities laws of ~~1933~~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 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 or book entries representing the Shares (if any) 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 and will not be immediately eligible for resale pursuant to Rule 144 promulgated under the Securities Act. Subscriber understands and agrees that 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 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. 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. 2.1.9 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, 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 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, and agreements 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. 2.1.10 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 Investor, as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its 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 Internal Revenue Code of 1986, as amended (the “~~Securities Act~~Code”), or any applicable Similar Law (as defined below). 2.1.12 In making its decision to subscribe for and purchase the Shares, Subscriber represents that it has relied solely upon independent investigation made by ~~virtue of Section 4(a)(2)~~ Subscriber and each of the ~~Securities Act~~ Issuer’s and GOGN’s representations, warranties and agreements in Section 2.2 and Section 2.3 hereof, respectively. Without limiting the ~~provisions~~ generality of ~~Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof~~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 ~~undersigned represents~~ Company or the Shares, the offer and warrants to the Company and its affiliates as follows: (i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution sale of the ~~Securities; (ii) The undersigned~~ Shares, the Transactions or the other transactions contemplated by this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has ~~the financial ability~~ received access to ~~bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies,~~ and has ~~no need for liquidity~~ had an adequate opportunity to review and understand 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, 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 ~~Company; (iii) The undersigned~~ Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had an opportunity to review the documents made available to Subscriber by GOGN and the ~~undersigned~~Company, including the Investor Presentation dated December 2022 (the “Disclosure Package”), provided by GOGN and the Company and any such documents available on the Securities and Exchange Commission’s ~~attorney, accountant, purchaser representative and/or tax advisor~~(the “Commission”) ▇▇▇▇▇ system. 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, without reliance on the Placement Agents, to make an investment decision with respect to the 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. Based upon such information as Subscriber 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 Placement Agents nor any of their affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing (collectively, “~~Advisors~~Representatives”) have made any 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 herein, shall modify, limit or otherwise affect Subscriber’s right to rely on the Issuer’s or GOGN’s representations, warranties, covenants and agreements contained in this Subscription Agreement. Subscriber acknowledges that (i) 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 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. 2.1.14 Subscriber became aware of this offering of the Shares solely by means of direct contact between Subscriber, on the one hand, and the Issuer, GOGN or their respective representatives (including the Placement Agents), ~~have received all documents requested~~ on the other hand. The Shares were offered to Subscriber solely by such direct contact. Subscriber did not become aware of this offering of the ~~undersigned~~ Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Shares (i) were not offered to it by any form of general solicitation or ~~Advisors~~general advertising, ~~if any~~including methods described in Section 502(c) of Regulation D under the Securities Act, and ~~have carefully reviewed them and understand~~ (ii) are not being offered to it in a manner involving a public offering under, or, to its knowledge, in a distribution in violation of, the ~~information contained therein, prior~~ Securities Act or any other applicable securities laws. 2.1.15 Subscriber acknowledges that it is aware that there are substantial risks incident to the ~~execution~~ purchase and ownership of ~~this Agreement; and~~ the Shares, including those set forth in the GOGN SEC Documents (~~iv) The undersigned (together with his~~as defined below). Subscriber is a sophisticated institutional investor, ~~her or its Advisors~~is able to fend for itself in the transactions contemplated herein, ~~if any)~~ has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is availableShares. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and Subscriber acknowledges that ~~his, her or its purchase~~ Subscriber shall be responsible for any of ~~the Securities is a speculative investment~~ Subscriber’s tax liabilities that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any. (k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or arise as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.this Subscript

Appears in 1 contract

Sources: Subscription Agreement (GoGreen Investments Corp)

Subscriber’s Representations, Warranties and Agreements. ~~The undersigned hereby acknowledges, agrees with and represents and warrants to~~ With full knowledge that the Company and its ~~affiliates~~officers, ~~as follows~~directors and controlling persons will be relying upon the following, among other things, in each case as of the date hereof: (a) The undersigned has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes determining whether a ~~valid and legally binding obligation of the undersigned. (b) The undersigned acknowledges his, her or its understanding that the offering and~~ sale of ~~the Securities is intended~~ Units to me will be exempt from the registration ~~under~~ requirements of the U.S. Securities Act of 1933, as amended (~~the “Securities~~ "Act”"), ~~by virtue of Section 4(a)(2) of the Securities Act~~ I represent and ~~the provisions of Regulation D promulgated thereunder (“Regulation D”). In furtherance thereof, the undersigned represents and warrants~~ warrant to the Company and ~~its affiliates as follows~~agree with the Company that: (ia) ~~The undersigned is acquiring~~ I have received and carefully reviewed such information provided to me in writing by the ~~Securities solely for the undersigned’s own beneficial account, for investment purposes,~~ Company and ~~not with view to~~Hot Caller, or ~~resale in connection with, any distribution~~ information from books and records of the Securities; (ii) The undersigned has the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company; (iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “Advisors”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and (iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities. (c) The information in the Investor Questionnaire (attached as Appendix A) completed and executed by the undersigned (the “Investor Questionnaire”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D. (d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof. (e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws. (f) No representations or warranties have been made to the undersigned by the Company, as I have requested in making a decision to subscribe for the Units. I understand that additional information concerning the Company and Hot Caller has been made available for inspection by me and my attorney, accountant or other ~~than any representations~~ adviser, and that the books and records of the Company ~~contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement~~and Hot Caller will be available, upon reasonable notice, for inspection by subscribers during reasonable business hours at its above-stated place of business. I and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement. (g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“SEC”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q. (h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED. (i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority. (j) The undersigned and his, her or its Advisors, if any, my advisers have had a reasonable opportunity to ask questions of and receive answers from the Company, or a person or persons acting on ~~behalf of the Company~~ its behalf, concerning the offering of the ~~Securities and the business, financial condition, results of operations and prospects of the Company~~Units, and all such questions have been answered to my full satisfaction. No oral representations have been made or oral information furnished to me or my adviser(s) in connection with the ~~full satisfaction~~ offering of the ~~undersigned~~ Units which were in any way inconsistent with written information provided. I acknowledge and ~~his~~agree that I have been furnished with substantially the same information regarding the Company and Hot Caller and their respective current (or in the case of Hot Caller, ~~her~~ proposed) operations, assets, financial condition and plan of operation as would be contained in a registration statement and included prospectus prepared in connection with a public offering of the Units, or that such information has been made freely available to me by the Company. (b) I understand that the Notes and Conversion Shares have not been registered under the Act but will be issued in reliance upon Regulation S of the U.S. Securities and Exchange Commission, an exemption from the registration requirements of the Act for sales of securities made solely outside the United States of America, which term includes its ~~Advisors~~territories and possessions ("USA") to persons who are not "U.S. Persons." I understand that the Notes and Conversion Shares may not be offered or sold by me in the USA or to any U.S. Person during the 1-year "distribution compliance period" following completion of the offering of the Notes. I agree not to engage in any hedging transactions during the distribution compliance period involving the Notes or Conversion Shares except in compliance with the Act. I understand and agree that a stop transfer order affecting the Notes shall be placed in the Company's records, and a stop transfer order affecting the Conversion Shares shall be placed with the Company's transfer agent, in each case preventing the transfer thereof except as permitted by law. (c) I have not been solicited to purchase the Units while present in the USA, and I was outside the USA at the time of executing this Agreement. The funds utilized for the purchase of the Units were not been obtained from any U.S. Person. (d) I am not a "U.S. Person", and I am purchasing the Units for my own account and not on behalf of or for the account of any U.S. Person. I, alone or together with my adviser(s), have such knowledge and experience in financial, tax and business matters as to enable me to utilize the information made available to me in order to evaluate the merits and risks of purchasing the Units and to make an informed investment decision with respect thereto. (e) I have not engaged in any act intended to precondition the U.S. market for the resale of the Notes, Conversion Shares, Warrants or Warrant Shares. I am not acting as a "distributor" of the Units or any components of the Units. However, if ~~any~~I should be deemed to be a distributor prior to reselling the Units to a non-U.S. Person during the restricted period, I will send a notice to each new purchaser of the Units or component parts of the Units that he is subject to the restrictions of Regulation S during the 1-year distribution compliance period. (f) I understand and agree that any and all instruments which are issued representing the Notes shall, unless and until removed upon registration under the Act or in accordance with applicable law, contain a legend substantially in the following form: "This promissory note and the common shares issuable upon conversion have not been registered under the U.S. Securities Act of 1933 ("Act") but have been offered and sold in reliance upon Regulation S under the Act. Transfer of this note or such shares is prohibited except in accordance with the provisions of Regulation S, pursuant to registration under the Act, or pursuant to an exemption from registration under the Act. Any hedging transactions involving this note or the underlying common shares may not be conducted unless in compliance with the Act." (g) I understand and agree that any and all certificates which may be issued representing Conversion Shares not already registered under the Act prior to issuance upon Note conversion shall, unless and until removed upon registration under the Act or in accordance with applicable law, contain a legend substantially in the following form: "These shares have not been registered under the U.S. Securities Act of 1933 ("Act") but have been offered and sold in reliance upon Regulation S under the Act. Transfer of these shares is prohibited except in accordance with the provisions of Regulation S, pursuant to registration under the Act, or pursuant to an exemption from registration under the Act. Any hedging transactions involving these shares may not be conducted unless in compliance with the Act." (i) The Warrants and all certificates evidencing the Warrant Shares shall bear such legends or restrictions as may be required by applicable laws, rules or regulations of Canada or any province or other governmental unit thereof. Subscriber agrees to the placement of all such legends and restrictions on the Warrants and Warrant Share certificates and agrees to the placement of a stop transfer order in the transfer records of Hot Caller preventing the transfer of the Warrants and Warrant Shares except in accordance with law. (j) If Subscriber is a corporation or other entity, Subscriber has full power and authority to execute this Agreement, to make all representations, warranties and covenants set forth herein and to acquire and hold the Units, and has its principal office at the place set forth on the signature page hereof. If Subscriber is an individual, Subscriber is at least 21 years of age and resides at the place set forth on the signature page hereof. All information which Subscriber has provided to the Company is correct and complete as of the date set forth above and, if there should be any adverse change in such information prior to this subscription being accepted, Subscriber will immediately provide the Company with such information. (k) ~~The undersigned is unaware of, is in no way relying on, and did~~ Subscriber has not ~~become aware of~~ been solicited by the ~~offering of the Securities through~~ Company or ~~as a result of,~~ anyone on its behalf by any form of general solicitation or general ~~advertising including~~advertising, ~~without limitation~~including but not limited to (i) any advertisement, ~~any~~ article, ~~notice, advertisement~~ notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or ~~electronic mail~~ made available over ~~the Internet~~telephone lines by any information service, ~~in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through~~ or ~~as a result of~~ (ii) any seminar or meeting ~~to which the undersigned was~~ whose attendees had been invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally. (l) The undersigned has taken no action that would give rise to any claim by any ~~person for brokerage commissions, finders’ fees~~ means of general solicitation or ~~the like relating to this Agreement or the transactions contemplated hereby~~general advertising. (m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors. (n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon. (o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities. (p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company. (q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

Appears in 1 contract

Sources: Joint Subscription Agreement (Innofone Com Inc)

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